Denmark - Refugee Appeals Board’s decision of 1 December 2017
Keywords:
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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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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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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 complainant is a Sunni Muslim from Mogadishu, Somalia. In July 2015 the Danish Immigration Service decided that his subsidiary protection status under the Danish Aliens Act. Art. 7 (2) had lapsed according to the Danish Aliens Act Art. 17 (1) and (4). The Refugee Appeals Board did not consider that the Danish Immigrations Service had lifted its burden of proof according to the Danish Aliens Act Art 17 (4). Consequently, the Board granted the complainant continued subsidiary protection under the Danish Aliens Act Art. 7 (2).
Facts:
The complainant, a Sunni Muslim from Mogadishu, Somalia, born in 1973, entered Denmark in July 1992 and applied for refugee status. In September 1992 he was granted subsidiary protection under the Danish Aliens Act Art. 7 (2) by the Danish Immigration Service. In September 1997 he was granted indefinite residence permit. In July 2015 the Danish Immigration Service decided that his subsidiary protection status under the Danish Aliens Act. Art. 7 (2) had lapsed according to the Danish Aliens Act Art. 17 (1) and (4). Subsequently, a complaint was lodged. It appears from the Central Register of Persons that the complainant had been registered as disappeared from 2011 to 2015. The complainant did not appear before the Refugee Appeals Board.
Decision & reasoning:
The Board decided that the complainant did not have a lawful excuse and proceeded with his case.
The complainant had informed that he had not been outside the country and that he had stayed with his aunt and a friend. However, he had not been able to produce documentation for his whereabouts and he denied giving consent to have his fingerprints taken and have foreign authorities, homeless hostels or his friend be contacted. Based on this the Board established that the complainant had stayed outside Denmark for more than 12 consecutive months and therefore the condition in the Danish Aliens Act Art. 17 (1) had been fulfilled.
As the complainant’s subsidiary protection status was granted under the Danish Aliens Act Art. 7 (2) the Danish Aliens Act Art. 17 (4) determines that the subsidiary protection status does not lapse until the alien of his own free will has settled in his country of origin or has obtained protection in a third country. It is the responsibility of the authorities to ensure that the conditions are fulfilled. Due to lack of information it has not been possible to assess whether the complainant voluntarily had resided in Somalia or obtained protection in a third country. Consequently, the Board could not consider that the conditions in the Danish Aliens Act Art. 7 (4) had been fulfilled. That the complainant had not given concrete and adequate information cf. the Danish Aliens Act Art. 40 could not lead to another decision.
The Board therefore reversed the decision of the Danish Immigration Service and granted the complainant continued subsidiary protection under the Danish Aliens Act Art. 7 (2)
Outcome:
The applicant was granted continued subsidiary protection under the Danish Aliens Act Art. 7 (2).
Cited National Legislation:
| Cited National Legislation |
| Denmark - The Danish Aliens Act Art. 7 (2) |
| Denmark - The Danish Aliens Act Art. 17 (1) and (4) |