Spain - High National Court, 8 July 2011, 302/2010
| Country of Decision: | Spain |
| Country of applicant: | Ivory Coast |
| Court name: | High National Court |
| Date of decision: | 08-07-2011 |
| Citation: | 302/2010 |
Keywords:
| Keywords |
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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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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. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The applicant claimed asylum in November 2009 alleging a well founded fear of persecution for reasons of race and religion. The application was refused by the Ministry of Interior on the grounds that the application did not amount to persecution in accordance with the 1951 Refugee Convention. On appeal, the High National Court re-examined the application and held that the conflict which had arisen in the Ivory Coast had to be taken into account and on that basis subsidiary protection should be granted.
Facts:
On the 5th November 2009, the applicant claimed asylum alleging the following facts: his grandparents were nationals of Mali and he had always been considered a foreigner in the Ivory Coast. Moreover, he belonged to the dioula ethnic group. In September 2002, the conflict in Ivory Coast broke out and governmental and civil entities began to detain and execute foreigners and members of the dioula ethnic group; his family was threatened and urged to leave the region of Danane. On the 22nd September the house was burnt down by the military and his father disappeared. The applicant thinks he was executed. In October 2002 he fled to Mali, then to Senegal and Mauritania, facing real hardship. In July 2009 he entered Spain.
The Ministry of Interior refused the application declaring that the acts alleged did not amount to persecution, the facts alleged were inconsistent, membership of the dioula ethnic group had not been sufficiently proven, some months had elapsed since he entered Spain before he submitted the application and he could have availed of protection in a safe third country.
Decision & reasoning:
The High National Court held that the appeal against the refusal to grant refugee status could not succeed since the allegations made by the applicant could not be considered as individualised persecution under the 1951 Refugee Convention.
Nevertheless, when assessing if the applicant qualified for subsidiary protection, the Court relied on a report issued by UNHCR (UNHCR Position on Returns to Côte d'Ivoire 20th January 2011) stating that serious human rights violations were taking place due to the conflict in Ivory Coast. These violations had been inflicted by both Gbagbo’s government and Ouattara’s political opposition. Also, the recommendation by UNHCR in the above report to cease forced returns to Ivory Coast had to be taken into account.
The Court held that there was a real risk to the applicant if returned to his country of origin. Therefore, subsidiary protection could be granted since the applicant faced a real risk of suffering serious harm (Art.4, Law 12/2009), particularly, on the grounds of “serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of internal armed conflict”.
Outcome:
The appeal was partially successful: refugee status was refused and subsidiary protection was granted.
Observations/comments:
This decision was the first time (because of the armed conflict in Ivory Coast) that subsidiary protection under the new Spanish Asylum Law 12/2009 was applied. Prior to this case the provision on ‘human considerations’ was applied in a broader and more uncertain manner, and was different from what is defined the Qualification Directive.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Asylum Law 12/2009 - Art 4 |
Follower Cases:
| Follower Cases |
| Spain - Supreme Court, 23 May 2012, Nº 3847/2012 |
Other sources:
96/196/JHA: European Union, Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term "Refugee" in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees (Annex 1), 4 March 1996
UN High Commissioner for Refugees, UNHCR Position on Returns to Côte d'Ivoire, 20 January 2011