Czech Republic - Supreme Administrative Court, 4 February 2009, R.S. v. Ministry of the Interior, 3 Azs 75/2008-109
| Country of Decision: | Czech Republic |
| Country of applicant: | Sri Lanka |
| Court name: | Supreme Administrative Court |
| Date of decision: | 04-02-2009 |
| Citation: | 3 Azs 75/2008-109 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
Unlike with subsidiary protection, it is necessary for there to be a causal link between persecution and the grounds for persecution when assessing the conditions for granting asylum. The fact that a conflict between LTTE and governmental armed units affected Tamil civilians does not mean nationality qualifies as a ground of persecution.
Facts:
The Applicant, who is of Tamil nationality, applied in the Czech Republic for international protection in 2007, as she allegedly had problems in Sri Lanka with the army, as well as the separatist group, the LTTE. The Ministry refused her application and did not grant her international protection in either of its forms. Based on the action filed with the Regional Court, the decision of the Ministry was repealed regarding subsidiary protection, and the asylum claim was dismissed. For this reason, the Applicant appealed the decision refusing asylum to the Supreme Administrative Court. She linked her well-founded fear of persecution to her nationality.
Decision & reasoning:
The Court pointed out in the introduction that unlike subsidiary protection, in granting asylum a causal link between the persecution and an exhaustive list of determined grounds for persecution is required. In the case of asylum, a “serious breach of human rights” is to be examined, whereas in the case of subsidiary protection, it is “serious harm”. According to the Court, it was proved that the civil population in Sri Lanka was dragged into the conflict between the governmental troops and LTTE and that the government was not able to protect its citizens. In this context, the Regional Court was correct in concluding that the case of the Applicant had to be re-examined based on objective information and the risk of serious harm if she were to return; that is to say, the conditions for granting subsidiary protection. The real risk of serious harm should be examined, in particular with a focus on possible risk factors, as outlined in the judgment NA v. the United Kingdom of the European Court of Human Rights.
Yet on the other hand, the Court did not affirm that in the case of the Applicant the persecution was due to her nationality. The Applicant had, up to this, linked her problems with her nationality, but according to the Court the reasons for her problems were different. The reason for the attention and actions of the authorities against the Applicant was the geographic location of her home and her place of work, which resulted in pressure on her person from both parties (the troops and LTTE) but not her nationality as such.
Outcome:
The cassation complaint was dismissed.
Subsequent proceedings:
The decision of the regional court was therefore upheld by the Supreme Administrative Court and the case was returned to the Ministry for re-examination of the subsidiary protection claim.
Observations/comments:
As a result of the decision, it follows that the Regional Court determined that the information on the country of origin was insufficient. Specifically, in relation to the information from the UK Home Office – Operational Guidance Note: Sri Lanka, 9 March 2007 - it stated that the Guidance Note is not to be the only source used due to the questionable objectivity of such information intended for the staff of the UK Home Office in making decisions.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Czech Republic - 1 Azs 13/2006-39 (Supreme Administrative Court) |
| ECtHR - NA v UK, Application No. 25904/07 |
Other sources:
- Kosař, D., Rozdíly mezi azylem a doplňkovou ochranou: definice „uprchlíka“ vs. definice „osoby, která má nárok na doplňkovou ochranu“, článek ze sborníku příspěvků Společný evropský azylový systém: doplňková ochrana, Masarykova Univerzita Brno, 2007;
- UK Home Office Operational Guidance Note: Sri Lanka, 9 March 2007.