Hungary - Metropolitan Court, 10 November 2009, O.K.E. v Office of Immigration and Nationality (OIN), 15.K.34.873/2008/13
Keywords:
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 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. |
Headnote:
The Court obliged the Respondent to conduct new proceedings as it expressed an opinion on the Claimant’s state of health without appointing an expert.
Facts:
The Claimant requested refugee status in 2002 citing his membership of MASSOB and political activity. The Respondent rejected the request for refugee status, but, making reference to the Claimant’s state of health, found that the prohibition against expulsion / non-refoulement applied (i.e. tolerated status). In 2008 the Respondent launched ex officio proceedings for a review of the Claimant’s legal entitlement to stay which included a full review of the Claimant’s entitlement to refugee, subsidiary protection and tolerated status. The Respondent found that the Claimant cannot be recognised as having either refugee or subsidiary protection status, and also found that non-refoulement no longer applied.
Decision & reasoning:
According to the Court, the Respondent rightly questioned the credibility of the Claimant, stating that the issue of the Claimant’s political persecution had already been the subject of legal proceedings with a final decision, and the Claimant made no reference to new facts or circumstances in the current proceedings.
However, the Respondent did not call upon the Claimant to attach new medical documents when reviewing eligibility for subsidiary protection status, nor was a medical expert appointed, and because of this the Respondent could not have made substantiated findings in issues requiring such particular expertise. Conducting a review of these factors is indispensable in issues concerning subsidiary protection status. The Court obtained a country of origin report on the quality and availability of Nigerian health-care services.
In view of the above, the Court repealed the Respondent’s decision and ordered the Respondent to conduct new proceedings. When reviewing subsidiary protection status the Respondent may not ignore the medical information provided by the Claimant in the proceedings, nor the content of the country of origin report obtained by the Court. Medical expertise is required to assess issues related to the Claimant’s state of health, which requires testimony from a medical expert and the provision of a professional opinion.
Outcome:
Decision repealed, new proceedings ordered.
Subsequent proceedings:
In the new proceedings the Respondent again rejected the Claimant’s application and again did not appoint a medical expert. Following the appeal filed against the new decision, the Court once more repealed the Respondent’s decision as it had failed to meet its obligation to appoint an expert. In the third round of proceedings the Respondent granted the Claimant subsidiary protection status.