Slovakia - Migration Office, 21 August 2013, A.A.S. v Ministry of the Interior of the Slovak Republic, 10Sža/18/2013
Keywords:
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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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. |
Headnote:
In order for subsidiary protection to be provided, the law requires not just a fear but a well-founded fear. This means that a fear of persecution must be real and not fictional. If the genuine nature of an appellant’s fear were to be accepted on the basis of an outline provided to the Respondent in proceedings to extend subsidiary protection, it would lead to a situation where almost all nationals of countries in which any kind of conflict was taking place - even a local one not directly affecting most of the population - would have to be regarded, without further grounds for acceptance, as persons in respect of whom there were serious grounds for believing that they would be exposed to a real risk of serious harm in the event of returning to the country of origin.
Facts:
The Appellant was provided with subsidiary protection on grounds of a risk of serious harm in the form of a serious and specific threat to life or the inviolability of the person as a result of indiscriminate violence during an international or internal armed conflict. The Appellant requested an extension of subsidiary protection, as the grounds on which he had been provided with subsidiary protection persisted. The grounds for his request included, among other things, fear of persecution and serious harm due to his profession as a doctor and his consequently more vulnerable position. The Migration Office, however, decided not to extend the Appellant‘s subsidiary protection, taking it as proven that the security situation in the Appellant’s country of origin had altered to the extent that the Appellant was no longer at risk of serious harm due to indiscriminate violence during internal armed conflict. The Migration Office did not examine the risk of other forms of serious harm, but limited itself only to an assessment of the general security situation in the city of M., from where the Appellant came. The Appellant appealed to the Court against this decision, claiming an error as to the facts, the existence of another defect in the proceedings and a contradiction with the contents of the files.
The Regional Court in Bratislava upheld the decision of the Migration Office, and stated the following in response to the individual objections raised by the Appellant:
Concerning the claim of an error as to the facts, it stated that the Migration Office had sought out and placed on file a number of reports from various sources dealing with the security situation in the Appellant‘s country of origin. These provided it with sufficient knowledge of the security situation in the area of M., in respect of which it was able to reach a qualified decision in the Appellant‘s case.
With regard to the specific position of the Appellant as a doctor, it stated that this claim was not well-founded, as the incidents described to the Migration Office to show that his fears were well-founded occurred at a time when the area was ruled by Al Shabab, and the Appellant no longer had to fear such threats.
Concerning the claim of a contradiction in the contents of the file, it stated that this was not well-founded, since the Migration Office had sought out and placed on file a sufficient amount of information on the country of origin, which described an improving situation in the Appellant‘s country of origin while not omitting reports on the occurrence of occasional incidents. The Migration Office had thus objectively described the facts of the case and, on the basis of due consideration, had concluded that there had been a substantial alteration in the security situation in M., and this fact was not contradicted by the contents of the file.
Outside the ambit of the claims, the Regional Court stated that the contested decision contained a correct legal assessment of the case. The Appellant had been provided with subsidiary protection due to the risk of serious harm arising from the complete control exercised by Al-Shabab over the city of M. and its surrounding area. The Appellant had also lived his entire life in that city. Thus, insofar as the Migration Office assessed the possible existence of serious harm from the perspective of the situation in M., which has demonstrably improved, the Respondent’s approach was correct.
The Appellant appealed against this decision to the Supreme Court, seeking to have the Regional Court’s decision amended by setting aside the decision of the Migration Office and referring the case back. The grounds for the appeal were incorrect findings of fact, incomplete findings of fact due to a failure to examine the evidence submitted, the existence of another procedural defect and an incorrect legal assessment of the case. Reference was also made to a failure to consider the existence of a risk of serious harm in forms other than serious harm resulting only from indiscriminate violence during the internal armed conflict, and a need to complete the taking of evidence as regards the safety of civilians.
Decision & reasoning:
The Supreme Court rejected the Appellant’s appeal and upheld the judgment of the Regional Court in Bratislava.
It accepted the Respondent’s view, agreed with the grounds advanced by the Regional Court and made reference to these grounds.
The appeal court added that for subsidiary protection to be provided, the law required not just a fear but a well-founded fear. This means that the fear of persecution must be real and not fictional. If the genuine nature of an appellant’s fear were to be accepted on the basis of an outline provided to the Respondent in proceedings to extend subsidiary protection, it would lead to a situation where almost all nationals of countries in which any kind of conflict was taking place - even a local one not directly affecting most of the population - would have to be regarded, with no further grounds for acceptance, as persons in respect of whom there were serious grounds for believing that they would be exposed to a real risk of serious harm in the event of returning to the country of origin.
Outcome:
The Supreme Court upheld the decision of the Regional Court in Bratislava, ref. no. 9Saz/1/2013-37, of 27 March 2013.
Observations/comments:
President of the Bench: JUDr. Jana Henčeková, PhD.