Denmark - The Refugee Appeals Board’s decision of 5 April 2017
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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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Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The applicant, an ethnic Ingush and a Muslim from Ingushetia, Russia, feared her former husband and his family. She feared they would take her daughter away from her because she ran away with her child. Moreover, the applicant feared her eldest brother as he would marry her off to an elderly man and take her child away and hand the child over to her former husband.
The Refugee Appeals Board did not find that the conflicts between the applicant and her family members were of such nature and intensity to fall under the Danish Aliens Act Art. 7. Consequently, the Board upheld the Danish Immigration Service’s decision to refuse the application.
Facts:
The applicant, born in 1985, is an ethnic Ingush and a Muslim from Ingushetia, Russia.
She entered Denmark in December 2012 and applied for refugee status. The applicant, who was required to be transferred to France under Dublin fled to Sweden and was returned to Denmark. Subsequently, she voluntarily returned to Russia.
The applicant entered Denmark again in July 2016 and applied for refugee status. The applicant stated that she feared if she returned to her country of origin she would be killed by her eldest brother as she had refused to marry an elderly man. The applicant also feared her ex-husband and his family as they would take her child from her. In support of her application, the applicant stated that at one time her father’s brother ran down the father of her former husband killing him. Subsequently, the family of her former husband started chasing her father’s brother to revenge the killing. As they could not find her father’s brother, the applicant was kidnapped by her former husband, she was then 19. Her former husband raped her, and consequently her elder brother refused to have her back. The applicant was subjected to an attempt of forced marriage, a death threat from her brother and fled to Moscow where she was located again by her brother.
The Danish Immigration Service rejected the asylum application in November 2016.
The Refugee Appeals Board upheld the decision of the Danish Immigration Service on 5 April 2017.
On 10 April 2017, the applicant lodged a complaint to CEDAW and applied for urgent interim measures.
On 12 May 2017, CEDAW admitted the complaint and requested the state party to refrain from expelling the applicant while the complaint was under consideration by the Committee.
On 24 May 2017, the state party accepted the Committee’s request.
Decision & reasoning:
The Refugee Appeals Board found the applicant’s account convincing to the effect that she feared her former husband and his family. She feared they would take her daughter away from her because she ran away with her child. Moreover, that the applicant feared her eldest brother as he would marry her off to an elderly man and take her child away and hand her over to her former husband.
However, the Board did not find that such conflicts between her and her family members were of such a nature and intensity to fall under the Danish Aliens Act Art. 7.
Regarding the applicant’s conflict with her former husband and his family the Board attached importance to the fact that none of them had made any attempts to seek out the applicant after she left her former husband allegedly in 2013/2014, although he knew where she was staying.
In respect of the conflict with the applicant’s elder brother the Board has attached importance to the fact that he did not look for her after she had fled to Moscow in spite of the fact that he found out that she was staying in Moscow after she had been there for seven or eight months. Furthermore, the Board attached importance to the fact that according to the applicant’s statement she stayed at the same place for one more month before leaving. Moreover, the Board refers to the fact that her elder brother did not look for her younger brother who had assisted the applicant in leaving. Apparently, the elder brother had earlier threatened him and knew where he was staying. Furthermore, the Board points out that on inquiry about this fact, the applicant explained that it was now some time ago and her elder brother had calmed down.
Thus, the Board did not accept that the applicant’s elder brother should have been behind an assault on her in Sandholmlejren and that he should have been able to find her or wanted to search for her.
Furthermore, the Board found that it was a criminal case which does not justify refugee status or subsidiary protection in Denmark, and that the applicant must notify the crime to the police.
The Board has attached importance to the fact that – before the applicant left Denmark in October 2014 – she withdrew her application for asylum mainly justified by the same facts as the present application.
Finally, as the general situation in Ingushetia is not of such a severe nature that it could justify asylum, the Board did not find that the applicant had rendered probable that on return to Russia she would risk being persecuted individually cf. the Danish Aliens Act Section 7 (1) or being exposed to serious harm cf. the Danish Aliens Act Section 7 (2). Consequently, the Board upheld the Danish Immigration Service’s decision.
Outcome:
The Danish Immigration Service’s decision to reject the application was upheld.
Subsequent proceedings:
The applicant’s complaint to CEDAW is pending the Committee’s decision.
Cited National Legislation:
| Cited National Legislation |
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| Denmark - The Danish Aliens Act Art. 7 |