Slovenia - Supreme Court of the Republic of Slovenia, 10 April 2014, Judgment I Up 117/2014
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Court of the Republic of Slovenia |
| Date of decision: | 10-04-2014 |
| Citation: | I Up 117/2014 |
Keywords:
| 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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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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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. |
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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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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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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:
By not considering country information submitted by the applicant, the Slovenian Migration Office did not establish all relevant facts and circumstances of the case before it. The Office had not clearly and precisely explained which reasons it considered as decisive in determining that the degree of indiscriminate violence in the applicant’s country of origin did not reach such a level that the applicant would be subjected to a serious and individual threat to his life or person in the event of return to his country of origin.
Facts:
The applicant applied for prolongation of his subsidiary protection status. His application was rejected. The Migration Office assessed that the general security situation in Afghanistan (based on reports from the UK Home Office, UNHCR, CSIS, UN Security Council, UNAMA, Anso, US Department of Defense, the US State Department, Areo, Federal Office for Asylum Austria) is improving. Moreover, taking into account the applicant’s personal circumstances (notably that he was no longer a minor), the applicant would not be threatened with serious harm, as defined in Article 15 of the Qualification Directive, upon returning to Afghanistan.
The Administrative court annulled the decision and stated that the Migration Office breached the General Administrative Procedure Act in conjunction with the International Protection Act as well as the applicant's right under Article 41 (right to good administration) of the EU Charter of Fundamental Rights. The Migration Office did not consider the numerous country of origin information (COI) reports submitted by the applicant, which were more up to date than those obtained by the Office (Amnesty International, Human Right Watch, BBC, ACCORD, FAO). The reports furnished details on the situation in Afghanistan, which point to the deterioration of security there , the increased number of victims amongst the civilian population, the frequency of attacks on selected targets in Kabul, the increased number of internally displaced persons and the poor living conditions in the centres where the rejected asylum seekers can be returned. Therefore, the facts were not properly established. The applicant was given only a theoretical chance to effectively defend his interests and rights.
The Migration Office appealed the judgment.
Decision & reasoning:
According to the Court the right to good administration (Article 41 of the Charter) is on one hand the right of an applicant in the administrative proceedings to be heard, before any individual measure which would affect him is adopted, and on the other hand it is an obligation of the administration to give reasons for its decisions, so as to take due account of the comments from the applicants, while carefully and impartially examine all the relevant elements of the case, which should be reflected in a sufficiently specific and precise statement of reasons in an administrative act.
The Supreme Court stated that the COI reports provided by the applicant relate to the violence and are legally relevant for determining whether the level of indiscriminate violence is such that the mere presence of the applicant in his country of origin constitutes a serious and individual threat to his life or person.
The Supreme Court agreed with the Court of First Instance (the Administrative Court) that the Migration Office disregarded the submitted current information and did not identify all relevant facts and circumstance when coming to its decision. No clear and precise explanation providing reasons why the Office had come to the conclusion that the degree of indiscriminate violence in the applicant’s country of origin did not reach such a level that the applicant would be subjected to serious and individual threat to his life or person in the event of return to his country of origin had been furnished.
Outcome:
The Supreme Court rejected the appeal and confirmed the judgment of the Administrative Court.
Observations/comments:
The Court is essentially saying that Article 41 obliges authorities to have up to date and detailed information on cases. Indeed, if they don’t it is not only in violation of the persons’ right to be heard but even to defend himself. So there is a direct link between the accuracy of COI reports and article 41. COI reports in cases, where, for objective reasons, concrete evidence of the persecution cannot be found, are in fact a crucial instrument for an objective and correct decisions on international protection.