Netherlands - AJDCoS, 9 September 2010, 201005094/1/V2
| Country of Decision: | Netherlands |
| Country of applicant: | Somalia |
| Court name: | Administrative Jurisdiction Division of the Council of State |
| Date of decision: | 09-09-2010 |
| Citation: | 201005094/1/V2 |
Keywords:
| Keywords |
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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”. |
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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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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:
Where the situation described in Art 15(c) of the Qualification Directive does not occur in all parts of the country of origin, it must be assessed in respect of the distinct area of the country from which the applicant originates.
Facts:
The applicant based his claim on the general situation in the country of origin and relied on Art 15 (c ) of the Qualification Directive. The asylum application was rejected.
In dispute was whether or not an asylum seeker should benefit from Subsidiary Protection in view of the general situation in Somalia. This case concerned the further appeal of both the Minister of Justice and the applicant against the decision of the District Court of Arnhem of 18 May 2010 (09/34203).
The Minister of Justice and the applicant differ in view about whether this (the existence of an Art 15(c ) situation) should be assessed taking into consideration the situation in the whole of Central and Southern Somalia or only the situation in Mogadishu.
The applicant appealed that decision. That appeal was denied. The applicant subsequently appealed to the Council of State.
Decision & reasoning:
The Council of State considered that where the situation described in Art 15(c) of the Qualification Directive does not exist in all parts of the country of origin, it must be assessed in respect of the distinct area of the country from which the applicant originates. The relevant question is whether in that distinct area an Art 15(c) situation is in existence. This follows from the previous case law of the Council of State (including April 3, 2008, Case No. 200701108 / 1, July 13, Case No. 200707865/1/V2, January 25, 2010 and Case No. 200909886/1/V2, January 26, 2010200905017/1/V2).
Given that the applicant originated from Mogadishu, and that the country of origin report compiled by the Ministry of Foreign Affairs of March 2009, October 2009 and March 2010 separately discuss the general security situation in Mogadishu, the District Court erred by following the view of the Minister of Justice that the general security situation in this case must be assessed in the context of Central and Southern Somalia.
Whether an Art 15(c) situation exists must be examined by assessing the security situation in the area in the country of origin from which the applicant originates (home area). In this case that is Mogadishu and not the whole of Central and Southern Somalia.
Outcome:
The Court referred the case back to the Minister of Justice to reconsider the application.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - F.H. v Sweden (Application no. 32621/06) |