Greece - Appeals Committee, 23 September 2015, 10738
| Country of Decision: | Greece |
| Country of applicant: | Burkina Faso |
| Court name: | Appeals Committee |
| Date of decision: | 23-09-2015 |
| Citation: | 10th Appeal Committee’s decision (Doc. Ref: 10738/2015) |
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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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).
Facts:
The applicant was of Muslim faith, a citizen of Burkina Faso and had been detained in N. Greece before he applied for international protection. During the examination of his application in the First Degree (ar.17, paragraph. 1 PD 113/2013), the asylum seeker claimed that he mainly speaks the dialect Bisha and can understand French poorly. The personal interview was then conducted in French, with the assistance of an interpreter, where it was instantly evident that the applicant could not adequately comprehend the questions. The interpreter informed the interviewer, but she disregarded this fact, which resulted in significant information deficiencies regarding the applicant’s claim that she did not later clarify. Consequently, the interviewer found the applicant’s answers to be “vague, undefined, and unclear”. The applicant appealed this decision.
During the examination of the claim in the Second Degree (the appeal), the rapporteur disregarded the applicant’s inability to adequately understand French, and submitted a written proposal before the Committee, claiming that the elements of the appeal were “unclear, vague and contradictory”. He added that the appellant had not introduced any new information, apart from the traumatic experience suffered in the detention centre in N. Greece, which he found to be arbitrary information. The Committee examined the appeal in absentia (according to first subparagraph, paragraph. 4 Ar. 26 PD 113/2013), since the applicant did not attend.
Decision & reasoning:
The Committee held that the applicant satisfied the subjective element of the well-founded fear (Article 1A (2) of the Geneva Convention 1951), by being unwilling to return to Burkina Faso and by filing for asylum in Greece. Furthermore, the Committee accepted the applicant’s religion, nationality and race as credible information. The Committee also accepted the «broken state of mental and spiritual health of the applicant», which deteriorated on account of his detention. His impaired mental health was fully evidenced by the abundance of medical records that the applicant produced.
The Committee held that the applicant did not satisfy the objective element of the well-founded fear, because he had not claimed any discrimination or threat as is requested by the interpretation of the term ‘persecution’ in Art. 33 of the Geneva Convention of 1951 and UNHCR Manual, par. 51. By not satisfying the required conditions set in the Geneva Convention 1951, the Committee could not confer refugee status on the asylum seeker. Nonetheless, «given the serious doubts arising out of the seemingly improper procedural administration during the First and Second Degree (relating to the rapporteur’s proposal)», the Committee believes that it «deprives the applicant of his right to an effective remedy» (as determined in ECHR -European Court, MSS v Belgium and Greece, appeal Nos. 30696/09). Additionally, the Committee believes that they are deprived of their opportunity to determine the actual merits of the applicant’s claim as enshrined in Article 1A (2) of the Geneva Convention for international protection, and the specific national provisions of Article 33 in PD 113/2013. The Committee also stated that while they wish to invite the applicant to a new hearing before them, this is not possible because «Appeal Committees may invite an applicant to an oral hearing only if the rapporteur has submitted a complete proposal», and not merely a written one (Article 26, para. 4 in PD 113/2013).
The Committee then examined international sources regarding the current situation in Burkina Faso, to determine the possibility of granting subsidiary protection. The Committee held that the applicant did not meet the prerequisites of Art. 2, 15 PD 141/2013, as the applicant would not be in danger of suffering serious harm if returned as a civilian to Burkina Faso, because there did not exist an "international or internal conflict" nor was there a known situation of "generalized violence".
The Committee then examined the possibility of granting temporary admission on humanitarian grounds (pursuant to art. 33 of PD 113/2013), on the basis of the principle of non-refoulement and for the protection of the applicant’s human rights. The Committee recognized that the applicant does not pose a threat to the national or public security in Greece, that he suffers from serious health issues, that he receives proper pharmaceutical treatment in Greece and that he would likely face financial hardship if returned to Burkina Faso, which could hinder an effective access to medical services. For these reasons, the Committee held that "if the present decision becomes final (Article 2 par. E in PD 113/2013), it is probable (Article 33, PD 113/2013) that the case will be referred to the competent authorities to examine the temporary admission on humanitarian grounds pursuant to Article 1, KYA 30651/2014 (FEK B 1453 / 05.06.2014)."
Outcome:
Appeal unsuccessful. Application for recognition of refugee status rejected. Eligibility for subsidiary protection not recognized.
Subsequent proceedings:
Possible future referral to the competent authorities to determine temporary stay on humanitarian grounds.
Observations/comments:
Observations by Spyros Koulocheris (Attorney at Law Office Greek Council for Refugees / The views expressed do not necessarily represent the views of the Greek Council for Refugees)
Mr. Koulocheris believes that the case should be reviewed. Specifically, he claims that if something is not explicitly provided for in the Law, this does not mean, a contrario, that it is excluded or banned. If that were the case, there would often arise perfunctory issues against proper administration and that would lead to unfair and disproportionate effects for the applicant.
This case summary was written by Nafsika Vasileiadou, a LLM student at Queen Mary's University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| CJEU - C-285/12, Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides |
| ECtHR - Kalashnikov v. Russia, No. 47095/99 , § 102, ECHR 2002-VI |
Other sources:
UNHCR, Interviewing applicants for refugee status 1995
“UNHCR, Procedural Standards for Refugee Status Determination Under UNHCR’s Mandate, 2013”
UNHCR Note on burden and standard of proof in refugee claims
"Doctors Without Borders, invisible pain: Repeated and systematic detention of migrants and asylum seekers in inadequate conditions in Greece, 18.02.2015"
339/2013 of the State Legal Council
The Bertelsmann Stiftung's Transformation Index - BTI, 2014 Burkina Faso Country Report
Freedom House, Freedom in the World 2015 - Burkina Faso
United States Department of State, 2014 Country Reports on Human Rights Practices - Burkina Faso
Amnesty International, The State of the World’s Human Rights 2014/2015: Burkina Faso