Netherlands – Court of The Hague, 7 April 2016, NL16.6
| Country of Decision: | Netherlands |
| Country of applicant: | Mali |
| Court name: | Court of The Hague (Hearing location Roermond) |
| Date of decision: | 07-04-2016 |
| Citation: | NL16.6 |
| Additional citation: | ECLI:NL:RBDHA:2016:3710 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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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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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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.” |
Headnote:
The three cumulative prerequisites for an internal protection alternative are not fulfilled, as it cannot be reasonably expected of the refugee to settle in the proposed part of the country. The UNHCR’s reasonability test is comparable with the national legislation’s one and UNHCR defines the internal protection alternative as ‘unreasonable’.
Facts:
The claimant originates from northern Mali and it is disputed whether the claimant can be reasonably expected to settle in southern Mali under the Internal Protection Alternative. The claimant and his mother have fled, with the help of smugglers, to Libya where their father and husband was living and working. After the death of his father and the outbreak of the conflict in Libya, the claimant’s mother decided it would be better for the claimant to continue his journey to Europe while she would return to their original residence in Mali. The claimant has reached the Netherlands in the meantime after having stayed in Italy for one year and in Switzerland for four months.
On the 25th of April, the claimant’s request for asylum has been denied on the basis of credibility; however, on 26 November 2013 he received a residence permit as an unaccompanied minor. The claimant challenged the notion that southern Mali can qualify as an Internal Protection Alternative and when this action was dismissed, the claimant lodged an appeal. The Administrative Law Department of the Council of State declared his appeal well-founded as the lower court had disregarded the fact that the defendant had falsely approved the international protection alternative based on outdated and inaccurate information, considering the given applicant’s personal and general circumstances.
The Court is consequently obligated to reassess the contested judgment.
Decision & reasoning:
Only the Internal Protection Alternative must be reassessed as it has already been decided that the claimant is not eligible for another residence permit. The Internal Protection Alternative can only be implemented if the three conditions are cumulatively fulfilled. The Court addresses these in order.
Firstly, the Internal Protection Alternative requires an area where the asylum-seeker is not in danger and where his security is guaranteed. This also includes that the asylum-seeker will not be exposed to new dangers in this area. The Court has agreed that based on the current security situation in southern Mali the claimant does not have a well-founded fear of persecution . The situation in Southern Mali, although unstable, is normalising. Recent non-structural violence occurred on a limited scale and is not directed toward the local population as much as to Westerners. The Court declared that the claimant will not be seen as a Westerner, due to his long stay outside Mali, as he originates from there and speaks the language fluently.
Secondly, the internal flight alternative requires that the asylum-seeker can travel safely and legally and gain admittance to that part of the country. The Court concluded it would be possible for the claimant to travel safely by plane to Southern Mali.
Thirdly, it must be reasonably possible that the asylum-seeker can settle in the area of the internal flight alternative. This requires that the asylum-seeker can live a normal life, according to local standards. The Court believed that the defendant has not clearly established that the claimant can live a normal life when implementing the Internal Protection Alternative, according to local standards, by referring to UNHCR’s information of 2014 and 2015. The mere fact that others have returned to Southern Mali does not give the Court a reason to come to a different conclusion, as it is not established that these others are also originating from North Mali. The reasonability test that UNHCR uses when assessing an Internal Protection Alternative largely corresponds to the reasonability tests in national legislation. As UNHCR defines the situation of return as “not reasonable”, it can therefore be concluded that it will equally not pass the comparable national assessment.
It is unclear, therefore, whether the personal circumstances, introduced by the claimant, have been included in the reasoning of the defendant when assessing the reasonability of the claimant’s Internal Protection Alternative in Southern Mali.
The Court consequently concluded that the contested decision lacks an adequate motivation, thereby making the decision eligible for destruction.
Outcome:
Appeal well-founded: hardship adequate motivation – no Internal Protection Alternative
Subsequent proceedings:
No information available
Observations/comments:
The Court confirms – as stated in a temporary order – that the reasonability test of UNHCR to assess the Internal Protection Alternative largely corresponds to the test in national legislation. The comparability of the test has increased the protection of the refugee in this case and can lead to similar results in future cases.
This case summary was written by Birte Schorpion, Immigration Law LLM-student at Queen Mary University of London.
The case summary was proof read by Miek Lamaire, MA International Security.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
- Country Report UN Security Council 22 September 2015
- UNHCR position on returns to Mali 2014
- UNHCR position on returns to Mali 2015 (update)