Czech Republic - Supreme Administrative Court, 13 March 2009, H.A.Š. v Ministry of Interior, 5 Azs 28/2008-68
| Country of Decision: | Czech Republic |
| Country of applicant: | Iraq |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 13-03-2009 |
| Citation: | n.5 Azs 28/2008-68 |
Keywords:
| Keywords |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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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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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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.” |
Headnote:
The case concerned an application for international protection by an Iraqi national. The application was dismissed on the grounds of a failure to establish that his life or person was threatened by reason of indiscriminate violence. The applicant failed to demonstrate individual risk.
Facts:
The Ministry of Interior (MOI) refused his asylum application, doubting his credibility primarily because of inconsistency in his account.
The applicant appealed to a regional court. However, the regional court dismissed the appeal and upheld the conclusions of the MOI. The applicant then lodged an appeal to the SAC. In this appeal, the applicant claimed he would face a real risk of serious harm consisting of a serious and individual threat to his life or person by indiscriminate violence in a situation of international or internal armed conflict (§ 14(a)(2)(c) Asylum Act which corresponds with Art 15(c) of the Qualification Directive).
Decision & reasoning:
The Court held that in order to establish this type of ‘serious harm’ a three-stage test must be satisfied, as set out below:
1. Is there an internal or international armed conflict in the country of origin?
The definition of an armed conflict includes both armed conflicts among government authorities and armed organised groups (vertical conflicts), as well as, armed conflicts among armed organised groups, neither of which represent government authorities (horizontal conflicts).
2. Is the asylum applicant a civilian?
A civilian is every person who is not the member of the armed forces of one of the conflicting parties.
3. Is the applicant’s life or person threatened by reason of indiscriminate violence?
-Exceptionally the applicant may, solely on account of his presence on the territory of that country or region, face a real risk of being subjected to that threat (the Court described this situation as a ‘total conflict’).
-It is appropriate to also take into account other factors - for example the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower is the level of indiscriminate violence required for him to be eligible for subsidiary protection (sufficient level of individualisation).
All three elements of the test outlined must be met for subsidiary protection to be granted in a situation of indiscriminate violence.
According to the final decision of SAC, the applicant fulfilled the first two conditions. It was accepted that Iraq was in a situation of international or internal armed conflict and that the applicant was a civilian. However, according to the Court, the applicant’s life or person was not threatened by reason of indiscriminate violence. The situation in Iraq could not be classified as a “total conflict,” where a civilian may solely on account of his presence on the territory of that country or region, face a real risk of being subjected to that threat. The applicant was not a member of a group that was at risk and therefore did not establish a sufficient level of individualisation.
Outcome:
The appeal was dismissed.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UNHCR eligibility guidelines for assessing the international protection needs of Iraqi asylum-seekers (2007)