ECtHR - T.A. v. Sweden, Application No. 48866/10
| Country of applicant: | Iraq |
| Court name: | Fifth Section; European Court of Human Rights |
| Date of decision: | 19-12-2013 |
| Citation: | Application No. 48866/10 |
Keywords:
| Keywords |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
|
Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
|
Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
Internal contradictions in the Sunni Muslim Applicant’s account, coupled with the time lapse since the relevant acts of persecution, led the majority to conclude that his return to Iraq, despite former employment with US-backed security companies, would not violate Articles 2 or 3.
Facts:
The Applicant, a Sunni Muslim from Iraq, faced deportation from Sweden back to Iraq, on account of his asylum claim having been rejected in 2010, three years after his arrival. He worked for security companies in Baghdad who co-operated with the US military, and alleged that his house was completely destroyed by Shi’ite militias.He fled Iraq and relies on his rights under Articles 2 and 3 to resist his return.
Decision & reasoning:
The Court first declared the general situation in Iraq to be not sufficiently serious to warrant the conclusion that any return to Iraq would violate Article 3 irrespective of personal circumstances.
Turning to the Applicant’s particular situation, the Court accepted that those associated with security companies employed by the international forces in Iraq faced a greater risk of persecution from militias than the general population. However, the Court were sceptical of an internal contradiction in the Applicant’s account and evidence, namely his brother’s documented claim that four people went into T.A.’s house a year after it was allegedly completely destroyed. This problem, coupled with the general lack of evidence for his claims and the near six year time lapse since the relevant acts of persecution, led the Court to reject T.A.’s Article 2 and 3 complaints.
Two judges of the Court dissented from the majority opinion, on account of the Applicant’s former employment placing him in a specific risk category, the escalating violence in Iraq in 2013, the overall plausibility of T.A.’s account, the overly onerous credibility test applied by the Swedish authorities, and the majority according too much weight to the alleged discrepancy in his account.
Related complaints under Article 8 and Article 1 of Protocol 7 were rejected by the court as manifestly ill-founded. Regarding the former, the Applicant had been split up from his family since 2007, and a decision to deport would not change this. For the latter, the Applicant had had ample opportunity to make representations against his removal.
Outcome:
No risk of violation of Articles 2, 3, 8 or Article 1 Protocol 7.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - F.H. v Sweden (Application no. 32621/06) |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI |
| ECtHR - Kaboulov v. Ukraine, Application No. 41015/04 |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| UK - HM and others (Article 15(c)) Iraq CG, [2012] UKUT 00409 (IAC) |
| ECtHR - Hakizimana v. Sweden, Application No. 37913/05 |
Follower Cases:
| Follower Cases |
| ECtHR - T.K.H. v. Sweden, Application No. 1231/11 |
| ECtHR - F.G. v. Sweden (no. 43611/11) (Grand Chamber), 23 March 2016 |
| ECtHR – N.A v. Switzerland, Application no. 66702/13, 30 May 2017 |
Other sources:
- 31 May 2012 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq;
- Report on Human Rights in Iraq: July – December 2012, published in June 2013, Human Rights Office of the United Nations Mission for Iraq (UNAMI);
- UK Border Agency Iraq Operational Guidance Note of December 2012.