Netherlands - District Court Zwolle, 15 August 2008, AWB 09/26758
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | District Court Zwolle |
| Date of decision: | 15-08-2008 |
| Citation: | AWB 09/26758 |
| Additional citation: | AWB 09/26756 |
Keywords:
| Keywords |
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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:
This case confirmed that the Qualification Directive makes a clear distinction between refugees and those in need of subsidiary protection. Further, that Art 28 of the Asylum Procedures Directive, which considers unfounded applications, is not applicable to those who fall within the scope of Art 15(c) of the Qualification Directive.
Facts:
The applicant submitted a subsequent application for asylum. This application was rejected with reference to Art 4:6 of the General Administrative Law Act. The applicant claimed that there is an internal armed conflict in Afghanistan and invoked Art 15(c) of the Qualification Directive in conjunction with Art 28 of the Asylum Procedures Directive.
Decision & reasoning:
The District Court held that the invocation of Art 15(c) of the Qualification Directive in this stage of the proceedings is contrary to the principle of due process. The court therefore did not take the invocation of Art 15(c) of the Qualification Directive into account.
The invocation of Art 28 of the Asylum Procedure Directive is not in violation of the principle of due process because this concerned a further submission of a previous claim. The District Court held that Art 28 of the Asylum Procedures Directive guarantees that member states only reject an asylum claim if the determining authority has established that the applicant does not qualify for refugee status pursuant to the Qualification Directive. This article and recital 22 of the Preamble of the Directive aim only to protect refugees as defined in the Qualification Directive. The Qualification Directive makes a clear distinction between refugees and those in need of subsidiary protection. Art 15(c) of the Qualification Directive is particularly written for those in need of subsidiary protection. Art 28 of the Asylum Procedures Directive is not written for this category. The District Court does not agree with the applicant’s argument that the Asylum Procedures Directive requires an assessment of whether Art 15(c) of the Qualification Directive is applicable. The court held that the application of the applicant was rightfully rejected with reference to Art 4:6 of the General Administrative Law Act.
Outcome:
The appeal was dismissed.