Slovenia - Supreme Court of the Republic of Slovenia, 28 December 2011, I Up 732/2011
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Court of the Republic of Slovenia |
| Date of decision: | 28-12-2011 |
| Citation: | I Up 732/2011 |
Keywords:
| Keywords |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
The Plaintiff’s previous experience does not lead to the conclusion that the Plaintiff is afraid of persecution (in the event that he was returned) based on race, religion, national identity, membership of a particular social group or a certain political belief, as his fear is based on the possible consequences of retribution merely because he fled. According to the judgment of the Supreme Court the fact that he fled from the Taliban does not make him a “member of a particular social group” on the basis of which his refugee status could be recognised.
Because the Plaintiff did not mention his current political conviction and his current anti-Taliban religious belief when applying for international protection he is not entitled to a refugee sur place status.
Facts:
In the case at hand the Plaintiff contests the decision of the defendant, with which his subsidiary form of protection was recognised, but not that of a refugee.
As a minor, the Plaintiff, a member of the nomadic people of Xazarlar, was forcefully recruited and trained by the Taliban to participate in a suicide mission, however he managed to escape before being sent on a mission.
The Plaintiff believes that he is entitled to refugee status on the basis of his national identity (Xazarlar, a people who remain targeted by the Taliban), and membership of a particular social group, which is in the case at hand created by specific children from Afghanistan, who are recruited by the Taliban to perform suicide attacks.
The Plaintiff also believes that taking into account his current fear of persecution, his current political conviction and his current anti-Taliban religious belief his refugee sur place status should be recognised.
Decision & reasoning:
According to the Supreme Court the defendant had rightfully ascertained that it cannot be concluded that the Plaintiff was subjected to the stated events due to his race, religion, national identity, membership of a particular social group or a certain political belief, as the events were a consequence of the fact that the Taliban recruit young males that they train to fulfil their goals. It should be emphasised that if the Plaintiff was returned to his country of origin he would no longer be subjected to the same or similar events (forced mobilisation by the Taliban, indoctrination, preparation for suicide mission) merely because of the fact that he fled the Taliban. However, due to his actions there is a grounded risk that he could be subjected to serious harm in the sense of Article 28 of the ZMZ upon his return to Afghanistan, due to which he was recognised with a subsidiary form of protection.
According to the Supreme Court the Plaintiff's fear is based on the possible consequences of Taliban retaliation exclusively due to the fact that he had fled. The fact that he had fled the Taliban does not make him a 'member of a particular social group' on the basis of which his demanded refugee status could be recognised.
According to the Supreme Court the Plaintiff can also not be recognised with the status of a refuge sur place. According to Article 69 of the ZMZ grounded fear from persecution or grounded danger that the Applicant could be subjected to serious harm are based on events or activities that have occurred or in which the Applicant had participated after he fled his country of origin. This fact needs to be taken into account especially when it has been ascertained that these activities represent an expression and continuation of the convictions and orientations that the Applicant advocated while still in the country of origin. This rule can thus be applied only to the changed circumstances that emerge once the Applicant has fled the country of origin; these changed circumstances can emerge either in the Applicant’s country of origin or they can be events or activities in which the Applicant participated once he fled his country of origin, which could, if the Applicant was to return, result in consequences that would grant the recognition of a refuge or subsidiary protection status.
Taking into account that the Applicant did not state his current fear from persecution that would result from his current political conviction or his current anti-Taliban religious belief in his initial application for international protection, nor did he state any events or actions that might have represented a grounded base for his fear of persecution that occurred since he fled his country of origin, the Supreme Court concluded that this was merely an attempt by the Applicant to obtain a refugee sur place status, and that the circumstances as stipulated in Article 69(1) of the ZMZ did not change and thus the Applicant should not be recognised refugee status.
Outcome:
The Supreme Court rejected the appeal of the Plaintiff and confirmed the contested judgement of the Court of First Instance.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovenia - Zakon o mednarodni zaščiti (ZMZ) (International Protection Act) |