Slovenia - Administrative Court of the Republic of Slovenia, 14 february 2012, I U 42/2012,
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court of the Republic of Slovenia, |
| Date of decision: | 14-02-2012 |
| Citation: | I U 42/2012 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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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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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of evidence (in relation to subsidiary protection).
The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.
Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..
The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.
The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.
Facts:
The Plaintiff, a minor from the Ghazni province, left Afghanistan together with his older brother, with whom he lost contact during the journey. It was only once they were already travelling that his brother told him they left Afghanistan because their older brother was killed by the Taliban and that the Taliban threatened their entire family, which was why they were forced to move to Kabul.
The Defendant, the Ministry of the Interior (MI), rejected the minor's application for international protection. The minor was not considered credible because he did not know the name of his brother who was killed by the Taliban, knew nothing about the death of his brother while still in Afghanistan, and failed to perceive any sadness within the family.
The MI further claimed that the Plaintiff did not show any subjective element of fear, as the acts of persecution that he claimed did not concern him personally, and he also failed to establish a connection between the persecution and the grounds under the Geneva Convention.
The fact that the Plaintiff is a minor was taken into account by the MI only to the extent that the procedure was adjusted to his age; however it failed to take this fact into account when assessing whether the Plaintiff fulfilled the conditions for granting international protection.
The MI decided that the Plaintiff could be returned to his parents in Kabul, even though he insisted that he no longer had any contact with them, nor did he know where to find them. The MI did not attempt to find his parents, as this is supposedly the obligation of the police force once the procedure for removing the Applicant from the country has begun and not the obligation of the MI while the international protection procedure is still taking place.
According to the MI, the level of arbitrary violence in Kabul is not high enough to endanger a person returning to this province. In the Elgafaji case, the Court of Justice of the European Union took the stance that the more the Applicant is capable of proving that he is personally affected by the threats by reason of factors particular to his person circumstances, the lower the level of arbitrary violence will need to be shown for the Applicant to be eligible for subsidiary protection. In this case, the Plaintiff did not show any circumstances that would substantiate the recognition of protection even in the event of lesser violence. According to the Defendant, being a minor did not constitute one of these personal circumstances.
Decision & reasoning:
The Court was of the opinion that, without being familiar with the local customs in the state of origin, not knowing the name of the brother and the atmosphere in the family cannot constitute the basis for concluding that the Plaintiff did not show general credibility.
It was also wrong of the MI to conclude that the Plaintiff's fear lacked a subjective element, for he had shown that he feared the Taliban. By considering all relevant circumstances and analysing all available information on the country of origin, the Defendant should have established whether the fear was grounded. As the ZMZ (International Protection Act), the Geneva Convention and the Qualification Directive do not state that the violence needs to be aimed directly at the person applying for international protection, threats and violence against the family members of the Applicant can be considered as acts of persecution if the Applicant is connected to the facts which previously lead to the violence.
According to the Geneva Convention, the Plaintiff does not need to explicitly state the grounds forpersecution. The Plaintiff has to state all circumstances that he is aware of in relation to his persecution; however he does not need to establish the material and legal connection between the persecution and the grounds for persecution. The legal assessment of this connection has to be performed by the Defendant.
The Defendant did not protect the best interest of the child as directed by the ZMZ and the Convention on the Rights of the Child. The MI would have already had to start the process of finding the child's parents in the course of the international protection procedure and not just once the procedure for removing the child from the country had begun. The question as to whether the child will be safely received - in the sense of basic living conditions - in the country of origin is important, as it is linked to subsidiary protection in relation to Article 3 of the ECHR.
In accordance with Articles 47(6) and 16(3) of the ZMZ (and Article 17 of the Procedures Directive 2005/85/EC), one has to provide legal representation for a minor applicant and take into account the Applicant’s statis as a minor in demonstrating and establishing the facts. The principle of protecting the best interest of the child also needs to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of evidence (in relation to subsidiary protection).
The Defendant’s belief that it is solely the duty of the legal representative to take care of the child's best interest is wrong, as it is also the task of the deciding body to protect the best interest of the child.
A child in Afghanistan can be a member of a particular social group. In Afghanistan being a youth without any contact with the parents is an essential characteristic of one’s identity, thus these individuals should not be forced to denounce their identity, as it is impossible to denounce this identity in its entirety. Apart from this, it is also clear, without any shadow of a doubt, that the aforementioned group has a special identity in Afghanistan, for the Taliban perceive them as such and use them for their military and political purposes, while criminal groups use them for other illegal intentions such as the white slave trade, sexual violence, drug trade and other crime. The Plaintiff could thus be persecuted because he belongs to a vulnerable group of children with or without parents.
Outcome:
The Administrative Court ruled in favour of the appeal, annulled MI's decision and returned the case to MI for a fresh procedure.
Subsequent proceedings:
The MI appealed against the judgment; however the Supreme Court passed judgment I Up 171/2012 on 18.04.2012 in which it confirmed the contested judgment. The MI issued a new decision and granted the minor subsidiary protection status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovenia - Ustava Republike Slovenije (Constitution) |
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 22 March 2011, DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305 |
| UK - Asylum and Immigration Tribunal, 15 March 2007, LQ, Afghanistan [2008] UKAIT 00005 |
| CJEU - C-403/09 PPU Deticek [2009] ECR I-12193 |
| CJEU - C-540/03 Parliament v Council |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| ECtHR - Husseini v. Sweden, Application No. 10611/09 |
| UK - Upper Tribunal, AA (unattended children) v Secretary of State for the Home Department, [2012] UKUT 00016 |
| ECtHR - Neulinger and Shuruk v. Switzerland [GC], Application No. 41615/07 |
Other sources:
UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22.12.2009
UN C ommittee on the Rights of the Child Guidelines on child asylum claims, December 2009, General Comment No. 6, paragraph 74