Belgium – Council of State, 29 November 2007, Nr. 177.396
Keywords:
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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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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. |
Headnote:
The Council of State ruled that in support of an application for subsidiary protection a mere reference to the general situation in the country of origin is in principle insufficient, and that the applicant needs to make a link between that general situation and his/her personal circumstances.
Facts:
The applicant, an Iranian national, filed an appeal against a decision of the former Permanent Refugee Appeals Commission (PRAC; now Council of Alien Law Litigation (CALL), see country overview) in which it rejected his application for refugee status or subsidiary protection status. The subsidiary protection status was rejected with a simple reference to the reasoning regarding the refugee status, that the applicant’s account lacked credibility.
Decision & reasoning:
The Council of State did not follow this line of argument and dwelt on the assessment requirements of an application for subsidiary protection. Referring to Art 18 of the Qualification Directive, the Council first of all stated that such status should be granted in accordance with Chapters II and V of the Directive, after which it extensively quoted from its Art 4. The Council concluded: “that every application should be examined individually, and each applicant should demonstrate in a sufficient manner that he/she runs a personal risk of serious harm; that a mere reference to the general situation in the country of origin is in principle insufficient; that the applicant has to make the link between that general situation and his personal situation, taking into account the fact that the personal aspects are less important for subground (c) (indiscriminate violence in case of international or internal armed conflict).”
Regarding the case at hand, the Council of State ruled “that the mere reference to the general situation in the country of origin is in principle insufficient and the applicant must show that he would be personally affected by the general situation of human rights violations in his country of origin; that, because of the PRAC’s ruling that the facts that the applicant had put forward to support his application for subsidiary protection were not credible, it could conclude that no further examination was necessary into the need for subsidiary protection.”
Outcome:
The appeal was rejected.