Finland - Supreme Administrative Court, 30 Dec 2010, KHO:2010:3964
Keywords:
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Serious harm
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. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “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.” |
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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The case considered whether the security situation in central-Iraq, and particularly in Baghdad, met the prerequisites for granting a residence permit on the grounds of subsidiary protection. It was confirmed that the need for international protection must be evaluated not only on points of law but also on points of fact. Both the applicant’s account of prior events in the country of origin, as well as current country of origin information regarding the security situation, must be taken into account in the risk assessment. As such, the evaluation is tied to a particular individual and to a particular time and place.
Facts:
The applicant was from Baghdad. The Immigration Service rejected the application for international protection holding that despite UNHCR guidelines to the contrary, Baghdad was safe. The Administrative Court overturned the decision and held that the applicant must be granted a residence permit on grounds of subsidiary protection. The Immigration Service applied for leave to appeal to the Supreme Administrative Court. The Immigration Service, inter alia, stated that as UNHCR did not provide information on the current conditions in Iraq, or as the information they did provide was out of date, there were grounds to depart from UNHCR’s position regarding current country of origin information. The applicant’s claim for asylum was based mainly on the prevailing security situation in Baghdad, rather than on experiences of individual persecution.
Decision & reasoning:
The Supreme Court stated:
Both collective and individual factors play a part in determining the need for subsidiary protection. In order to be granted subsidiary protection, the European Court of Justice has stated that the better the applicant can show compelling reasons for harm precisely due to factors related to his/her personal circumstances, the less need there will be to prove harm at the level of indiscriminate violence. (Elgafaji v Staatssecretaris van Justitie C-465/07)
Personal factors have not played a part in the applicant’s problems in his country of origin. This must be kept in mind when evaluating the safety situation in Baghdad, and particularly to what extent the occurring unquestionable acts of violence may be targeted at random individuals.
When assessing current country information from Baghdad as a whole, and also taking into consideration the nature and duration of the violence taking place, the Administrative Court’s assessment of the applicant’s need for subsidiary protection must be upheld. This is despite the fact that there have recently been reports of positive developments in the region. Thus the case does not require an assessment of the humanitarian protection laid out in Article 88 of the Aliens Act.
In the current conditions, the internal flight alternative is neither possible nor reasonable, taking into account also the applicant’s personal circumstances.
The Supreme Administrative Court found there was not in the applicant’s case at that time, grounds for changing the outcome of the Administrative Court’s decision.
Outcome:
The Supreme Administrative Court allowed for leave to appeal and examined the case. The Court held that the applicant should be granted a residence permit on grounds of subsidiary protection.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| UK - HM and Others (Iraq) v. Secretary of State for the Home Department, CG [2010] UKUT 331 (IAC) |
| Sweden - MIG 2009:27 |