Italy - Court of Cassation, 23 December 2010, No. RG 717/2010
Keywords:
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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. |
Headnote:
The existence of a risk of persecution in the country of origin should be assessed on the basis of information concerning the country of origin rather than on the basis of the credibility of the asylum seeker.
Facts:
The Applicant, a Nigerian citizen, had submitted a request for international protection which was rejected. Following an appeal, the Court upheld the decision taken by the administrative authorities, stating that there was no evidence to support any fear of persecution. The Appeal Court to which the appeal was then submitted upheld this decision and pointed on the one hand to the general and vague nature of the Applicant statements and, on the other, to the absence of evidence to support a request for international protection.
The Applicant then submitted an appeal to the Court of Cassation.
Decision & reasoning:
The Court of Cassation ruled that the Appeal Court had been mistaken in considering that the main and decisive criterion was the credibility of the Applicant and that the burden of proof lay on him. In fact, according to the Court, the risk of persecution should be assessed on the basis of ‘external’ and ‘objective’ information concerning the country of origin. Any assessment of personal qualities such as credibility is only relevant for evaluating the situation of the Applicant within the overall context.
Outcome:
The Court of Cassation quashed the judgment and sent it back to the Appeal Court for reconsideration in light of the principle stated above.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree No. 25 of 28 January 2008 |