Hungary - Administrative and Labour Court of Budapest, 13 June 2013, M.R.D. v Office of Immigration and Nationality (OIN), 6.K.31.548/2013/3
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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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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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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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.” |
Headnote:
Instead of non-refoulement, the Court granted the Applicant subsidiary protection status because he would be at risk of serious harm upon returning to his home country (torture, cruel, inhuman, degrading treatment or punishment).
Facts:
The Applicant requested refugee status in 2012, citing the fact that pursuant to Cuban law he is no longer considered a Cuban citizen due to his foreign residence, and he cannot return home. He also stated that he does not agree with the political system, he cannot live in the Cuban system, and he was not given any opportunities as a sportsman. In the initial proceedings the Respondent rejected the request both for refugee status and subsidiary protection status, but found that non-refoulement applied (tolerated status).
Decision & reasoning:
Agreeing with the Respondent, the Court found that refugee status could not be granted as the Applicant had not pursued any political activity and had no quarrels with the Cuban authorities.
As regards non-refoulement, however, the Respondent did not state in its decision which ground served as the basis for non-refoulement from among those defined in Section 45 (1) of the Asylum Act. There is no legal provision requiring the existence of a personal threat as a criterion for granting subsidiary protection status based on Section 61 b) of the Asylum Act; the applicant is exposed to the specific risk of a particular type of harm. Aside from an armed conflict, the risk of torture, inhuman or degrading treatment can arise in other more general situations too. Additionally, when defining protection categories it is not important whether the risk is general or not, but what the risk is based on. If an Applicant meets the requirements of a higher protection category as well, then he shall be given a higher level of protection. Neither the Qualification Directive nor the Hungarian asylum legislation transposing it determine any additional criterion for granting subsidiary protection status besides the actual risk of serious harm and the absence of grounds for exclusion.
In view of this, the Court set aside the Respondent’s decision and granted subsidiary protection status to the Applicant.
Outcome:
Partial rejection of the application in terms of refugee status, and granting of subsidiary protection status.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Hungary - Metropolitan Court, 30 September 2009, D.T. v. Office of Immigration and Nationality 17.K.33.301/2008/15 |