Netherlands - AJDCoS, 26 January 2010, 200905017/1/V2
| Country of Decision: | Netherlands |
| Country of applicant: | Somalia |
| Court name: | Administrative Jurisdiction Division of the Council of State |
| Date of decision: | 26-01-2010 |
| Citation: | 200905017/1/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:
When assessing whether a situation under Art 15(c) of the Qualification Directive exists, consideration is given to the nature and intensity of the violence as a result of the conflict as well as its consequences for the civilian population of Mogadishu.
Facts:
This case concerns the further appeal of the Secretary of State for Justice against the decision of the District Court Almelo (3 July 2009, 09/21625 en 09/21627). The applicant put forward that she should be offered subsidiary protection because of the high level of indiscriminate violence in Mogadishu. Her asylum application was rejected by the Secretary of State because she had not sufficiently substantiated her claim.
Decision & reasoning:
The submitted documents suggested that at the time of the decision of 15 June 2009 an armed conflict existed in Mogadishu between government troops backed by Ethiopian troops on the one hand and a complex set of other rebel groups on the other hand who were also fighting among themselves. The violence in Mogadishu flared in May 2009 due to this conflict. This lead to many civilian casualties and a large flow of refugees (about 40,000 people in May 2009, reaching about 190,000 people in June 2009). While the Secretary of State, acknowledged that the circumstances outlined above had been considered in the assessment, the Secretary of State, to justify her position that at the relevant time no exceptional situation existed in Mogadishu, sufficed with the mere assertion that the number of civilian casualties is no reason for adopting such a view.
Given the nature and intensity of violence as a result of the conflict and its consequences for the civilian population of Mogadishu, as may be inferred from the aforementioned documents, the Secretary of State with that single statement insufficiently reasoned that the applicant had failed to show that the level of indiscriminate violence in Mogadishu at the time of the adoption of the decision of 15 June 2009 was so high that substantial grounds existed for believing that a citizen by his sheer presence there, faced a real risk of serious harm.
Outcome:
The State Secretary had to make a new decision on the asylum application taken into consideration the above judgment.
Observations/comments:
This judgment was followed by a similar one on 9 September 2010 (201005094/1 A/2). This lead to a change in policy concerning Somali asylum seekers from Mogadishu. Mogadishu is now considered as an area where an article 15 (c) situation exists. However, an internal relocation alternative is assumed to exist elsewhere in Central- and Southern Somalia, for most Somalis.