Hungary - Metropolitan Court, 28 June 2012, G.N. v Office of Immigration and Nationality, 20.K.31.576/2012/3
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Metropolitan Court of Budapest (currently: Budapest Administrative and Labour Court) |
| Date of decision: | 28-06-2012 |
| Citation: | 20.K.31.576/2012/3 |
Keywords:
| Keywords |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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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:
Instead of rejecting the application, the Court granted subsidiary protection status to the single female Applicant and her minor children, as their return to the country of origin would lead to the risk of serious harm (indiscriminate violence).
Facts:
The Applicant's husband passed away and she arrived on the territory of the European Union with her two minor children and another child who came of age in November 2011. The family resided in Iran from 1995 and sometimes visited Herat; however, on these particulars the Applicant initially deceived the asylum authority. The Applicant did not want to return to Afghanistan with her family, as, being a single mother, she feared serious violations of her human rights. The OIN rejected her application for recognition of refugee status and subsidiary protection, finding that non-refoulement did not apply because the Applicant was not credible and had tried to mislead the authorities. She could safely return to Herat via Kabul, where her son, now of age, could take care of the family.
Decision & reasoning:
The Court dismissed the Applicant's application for refugee status as ungrounded in law.
However, the Court granted the Applicant subsidiary protection status, as the risk of indiscriminate violence existed both in the part of the country where she is originally from (Herat) and in the capital. This was ascertainable based on the information available both at the time when the administrative decision was made and the country information available at the time when the judgment was made. Thus the Court took the most up-to-date information into account. With respect to the internal relocation alternative, the Court highlighted that "not only the situation present at the time of the judgment of the application should be taken into account, but also the fact that neither persecution nor serious harm is expected to persist in that part of the country in the foreseeable future", in other words the protection shall last. Based on the country information, the Applicant cannot be sent back to Kabul either, as it cannot be expected that she could find internal protection there. According to the ministerial reasoning, “countries experiencing armed conflict cannot provide safe internal refuge for the above reason, as the movement of the front lines can make previously seemingly safe areas dangerous”.
Outcome:
Refusal of the Applicant's refugee status; recognition of her subsidiary protection status.
Subsequent proceedings:
The Court also recognised the subsidiary protection status of the Applicant's son named S.A who was of age citing the principle of family unity in its judgment in case number 15.K.31.608/2012/08, made on 4 October 2012.
Observations/comments:
The judgment represents progress in the national interpretation of the Qualification Directive (on internal protection and family unity). Furthermore, it is consistent with the practice of the ECtHR according to which fact-finding in the investigation of Article 3 always refers to the moment the court decision is being made.
At the same time, the Court's interpretation is debatable as the Court fails to recognise the Taliban conscription and threat as grounds under the Geneva Convention.
With regards to credibility, neither the OIN decision nor the judgment takes into account that beyond credibility, the future risk analysis of persecution/harm as an objective circumstance must constitute the subject of investigation in relation to the history of flight. The OIN completely failed to do this.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04, |
Other sources:
ANSO report (June 2011)