Greece - Council of State, 10 February 2009, Application No. 434/2009
| Country of Decision: | Greece |
| Country of applicant: | Afghanistan |
| Court name: | Council of State |
| Date of decision: | 10-02-2009 |
| Citation: | Application No. 434/2009 |
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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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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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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.” |
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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
A permit to stay, granted on humanitarian grounds to a foreigner whose application for asylum has been rejected until such time as it becomes feasible for him to go abroad, is of a temporary nature. It is possible to extend the validity of such a permit if there are exceptional circumstances relating to the prevailing situation in the foreigner's country of origin and/or relating to his personal circumstances. When an application to extend a permit to stay is submitted, the Administration should examine any exceptional grounds that may have been put forward.
Facts:
The Applicant, a citizen of Afghanistan, submitted an application for asylum which was finally rejected by by the General Secretary of the Ministry of Public Order in decision 4/147576/20.5.2002 which, however, allowed him to remain in the country on humanitarian grounds. This had been the wish expressed by the majority of the Asylum Advisory Committee, citing the “fluid situation which prevails in Afghanistan”. Pursuant to this, the Applicant was granted a “special residence permit on humanitarian grounds” valid until 20.5.2003. On 5.5.2003 the Applicant requested that the permit be extended, claiming that he had been a victim of torture in his country and that he would be at risk if he were to return, and also claiming that he had become integrated into Greek society. That request was rejected by the General Secretary of the Ministry of Public Order's decision of 1.9.2003 which gave the following justification: “The person in question is attempting to gain permanent residence in our country and cannot qualify for the protective provisions of Article 8(2) of Presidential Decree 61/1999 because he did not claim exceptional reasons for not returning to his country, such as serious health problems, nor did he cite details of the general situation in his country to show that he would be exposed to risk. However it is worth noting that after the Bonn Agreement (2001) the foundations were set for building a new State in Afghanistan, with the hope of eradicating the remaining pockets of Taliban and Al Qaida and forming a National Army and Police Force. It should be noted that under the same agreement 2.5 million refugees were repatriated.” Document 4/147576/9.9.2003 from the Immigration Directorate informed the Political Asylum Office that the application had been rejected, and then the Applicant was informed (office record of 20.9.2003). The Applicant petitioned for annulment of the 1.9.2003 decision from the General Secretary of the Ministry of Public Order which, accepting the Immigration Directorate's recommendation 4/147576/21.8.2003, rejected the application which the Applicant had submitted to have his residence permit renewed for humanitarian reasons.
Decision & reasoning:
The Council of State (CoS) began by citing the relevant domestic, European and international legislation. It also explained that, in terms of administrative procedure, summoning the interested party to a hearing before issuing an administrative decision which may be unfavourable to him (as required by Article 20(2) of the Constitution) may be omitted in cases where the procedure to have the administrative decision issued was initiated pursuant to the interested party's own application, in which he has an opportunity to present his views and submit any necessary supporting documentation. Therefore, since the contested decision was issued pursuant to the Applicant's own application, there was no need to observe the formality of having a prior hearing. The Applicant claimed that he had been a victim of torture in his country and that he would be at risk of persecution should he return there, and he stated that he had attached photographs which showed the torture he had suffered. He also claimed that he was working legally in Greece and that he had become integrated into Greek society. However, the Council of State held that the Applicant's claims about the risk of individual persecution had been presented in a totally vague manner without citing any specific facts to support them, and that the photographs proving the facts which were said to have been attached to the application were not found in the Administration's file, nor had they been submitted by the Applicant. The Council of State also stressed that finding employment in Greece and becoming integrated into Greek society did not in itself constitute a reason to grant a temporary residence permit for humanitarian reasons. Therefore, rejecting those claims did not require any specific justification by the Administration so the plea that the contested negative decision did not have the legally required justification was groundless. However, the Council of State held that in view of the fact that the initial permit to remain on humanitarian grounds was issued because of the general situation which prevailed in Afghanistan – obviously because it was thought that, even though the party's application for asylum had been rejected, the situation in his country did not allow his return – simply referring, two years later, to a not well-specified Ministry of Foreign Affairs document and to general and vague assessments of the normalisation of conditions in Afghanistan following the above-mentioned Bonn Agreement (which, it was noted, already existed at the time the initial residence permit was issued) was not adequate justification for the rejection of the application for renewal of the Applicant's permit to remain for humanitarian reasons. The Council of State concluded that when an application to extend a permit to stay is submitted, the Administration should examine any exceptional grounds that may have been put forward.
Outcome:
The C.o.S. accepted the application, annulled the contested 1.9.2003 decision by the General Secretary of the Ministry of Public Order which had accepted recommendation 4/147576/21.8.2003 from the Immigration Directorate of the Hellenic Police Headquarters, referred the case back to the Administration, ordered the State to pay the Applicants' court costs and ordered the return of the fee.
Observations/comments:
The Council of State, Athens, Chamber D
Court composed of: A. Tsampasi, Vice-president, presiding in place of the President of the Chamber who was indisposed; E. Sarp, A. Christoforidou, Councillors; M. Athanasopoulou, S. Lampropoulou, Associate Councillors. Clerk: A. Ripi.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Bonn Agreement, November 2001