Belgium – Council for Alien Litigation, 17 August 2007, Nr. 1.244
Keywords:
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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The CALL ruled that for the recognition of subsidiary protection status (serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict), where doubt exists as to whether a person is a civilian or not, that person shall be considered to be a civilian.
Facts:
The applicant, an Iraqi citizen, lodged an appeal against a negative decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS). The CGRS had not granted refugee status because they found the applicant’s account implausible. With reference to the subsidiary protection claim, the CGRS considered that the implausibility was such that it was impossible to get an accurate picture of the applicant’s activities in the past, of his position and situation as a “civilian” in Iraq. According to the CGRS it could therefore “not be concluded with certainty that the applicant could be considered as a ‘civilian.’” The subsidiary protection status was therefore not granted.
Decision & reasoning:
In its decision the CALL also analysed the concept of “internal armed conflict” and found that the definition as provided in Art 1 of the second Protocol to the Geneva Conventions should be relied on (there is no clear definition of this concept in the Belgian Alien Law or in the preparatory works of parliament). The CALL then determined that the situation in Central-Iraq could be considered an internal armed conflict.
Given that it was established that the applicant came from Central-Iraq and that he had to be considered a “civilian”, subsidiary protection status could be granted.
Outcome:
Subsidiary protection status was granted.