Netherlands - AJDCoS, 25 May 2009, 200702174/2/V2
| Country of Decision: | Netherlands |
| Country of applicant: | Iraq |
| Court name: | Administrative Jurisdiction Division of the Council of State |
| Date of decision: | 25-05-2009 |
| Citation: | 200702174/2/V2 |
Keywords:
| Keywords |
|
Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
|
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). |
|
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:
Article 15(c) of the Qualification Directive only offers protection in exceptional circumstances where there is a high level of indiscriminate violence.
Facts:
This case concerns the domestic application of the CJEU case Elgafaji. The applicants, both belonging to the Shia community, feared persecution on account of the previous employment of the first applicant with a British company in Iraq, transporting goods from the airport to the Green Zone. His application for refugee status was refused by the Secretary of State for Justice on credibility grounds. His appeal at the District Court of Almelo (21 March 2007, AWB 07/9527 and 07/9530) was held to be well founded because the Secretary of State had not applied Art 15(c) of the Qualification Directive correctly. The application was refused by the State on credibility grounds. On appeal to the District court, the State’s adverse credibility conclusions were upheld; however the District court held that the State had incorrectly applied Art. 15(c) and ruled that the applicant was entitled to Subsidiary Protection. The State appealed to the Council of State, who referred the matter to the CJEU for a preliminary reference.
Decision & reasoning:
The Council of State concluded that it follows from the Elgafaji judgment that Art 15(c), read in conjunction with Art 2(e) of the Qualification Directive, is designed to provide protection in the exceptional situation where the degree of indiscriminate violence characterising the armed conflict reaches such a high level that substantial grounds are shown for believing that a civilian, if returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred to.
Art 29 (1)(b), of the Aliens Act 2000 provides a basis for a residence permit in situations provided for within Art 3 of the ECHR. Art 3 of the ECHR also covers the exceptional circumstances described in Art 15. The aforementioned can be inferred from the interpretation of Art 3 of the ECHR by the ECtHR in the judgment of July 17 2008 (NA v. UK).
The Court of Justice (CJEU) in Elgafaji (C 465/07) held that the interpretation of Article 15(c) of the Qualification Directive should be carried out independently. Nonetheless, it can be inferred from the decision in Elgafaji and the jurisprudence of the ECtHR regarding Art 3, that Art 15(c) of the Qualification Directive refers to a situation where Art 29 (1)(b) of the Aliens Act is also applicable.
Outcome:
The case was referred back to the District Court.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |