ECtHR- A.F. v. France, Application no. 80086/13, 15 April 2015
| Country of applicant: | Sudan |
| Court name: | European Court of Human Rights Fifth Chamber |
| Date of decision: | 15-04-2015 |
| Citation: | A.F. v. France, Application no. 80086/13, 15 April 2015 |
Keywords:
| 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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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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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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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. |
Headnote:
The case relates to a Sudanese national of Tunjur origin who claimed a risk of being subjected to ill-treatment if expelled to Sudan on the grounds of his ethnic origin and supposed ties with the JEM, the rebels’ movement against the regime in Sudan.
Facts:
The applicant is a Sudanese national of Tunjur ethnicity who lives in Mulhouse (France). He left Sudan on 10 March 2010, after being arrested, detained and beaten by the Sudanese security services on several occasions because of his participation in discussion groups in his University on the violence perpetuated by the regime. On arriving in France he applied for asylum, but his application was rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA). He lodged an appeal with the National Court of Asylum (CNDA), in support of which he submitted numerous documents, namely a medical certificate reporting that his scars were compatible with his allegations of torture, a certificate confirming his membership of the ethnic group Tunjur and a letter from JEM certifying that he was the subject of prosecutions and repeated arrests. On 28 March 2012, the CNDA upheld OFPRA’s decision to reject his application.
On 31 July 2013, the applicant was served with an order to leave the French territory, which he unsuccessfully appeal against before the Administrative Court of Strasbourg.
After attempting to submit an asylum application under a false identity, he was arrested on 10 December 2013 and placed in a detention centre on the same day.
On 19 December 2013, the applicant applied to the ECtHR for an interim measure under Rule 39 of the Rules of Court. An interim measure was granted for the duration of the proceedings before the Court.
Decision & reasoning:
Turning to Article 3 and the submissions by the applicant that in case of deportation to Sudan he would risk being subjected to ill-treatment, the Court noted that this risk should be examined based on the general situation of the country and the specific allegations of the applicant (Saadi v. the United Kingdom). Concerning the general situation in Sudan, the Court had recently pointed out in A.A. v. Switzerland the alarming situation in the country for political opponents of the regime, which had been deteriorating since the beginning of 2014 [49]. The Court further mentioned international reports demonstrating that mere membership of an individual to a non-Arab ethnic group in Darfur entails for the latter a risk of persecution, excluding any possibility of relocation within the country [50].
Reiterating much of the situational evidence presented in international reports, including the distrust that the Sudanese authorities viewed Darfuris with upon return to Sudan, the Court firstly noted that the French Government had not presented motivated reasons for doubting the applicant’s ethnicity, a first ground for persecution [52]. Secondly, given the corroboration of the applicant’s submissions with international documentation and medical certification, the incoherencies referenced by the government were not sufficient to question A.F.’s credibility [55]. Moreover, and with regards to a second asylum application that A.F. made under a false name, the Court concluded that the risks of persecution advanced by the applicant were consistent with the first application [56]. Thus, given A.F.’s profile and systemic violence towards ethnic Darfuri, return to Sudan would constitute an Article 3 violation [58].
Outcome:
Violation of Article 3 in case of return of the applicant to Sudan
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - N. v Sweden, 20 July 2010, no. 23505/09 |
| ECtHR - Mo P. v. France, Application No. 55787/09 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - A.A. v. Switzerland, Application No. 58802/12 |
| R.S. v. France , no 50254/09 |
| W.M. v. France , no 13134/10 |
| Klaas and Others v. Germany, no. 5029/71 |
Follower Cases:
| Follower Cases |
| ECtHR - M.O v Switzerland, Application no. 4128/16, 20 June 2017 |
Other sources:
International Crisis Group, Darfur’s New Security Reality (Africa Report no 134), November 2007
United Kingdom Home Office, Country of Origin Information Bulletin – Sudan: The Justice and Equality Movement (JEM) Attack on Omdurman, 10 May 2008
United Nations High Commissioner for Human Rights, Eleventh periodic report on the situation of human rights in the Sudan, 23 January 2009
Institute for War and Peace Reporting, Kalma Outrage Victims Demand Investigation, 17 December 2008
Human Rights Watch, Darfur: UN Should End Silence on Rights Abuses, 21 August 2014
UN News Service, Darfur: UN official urges support for peace process amid unfolding new dynamics, 24 April 2014
United Kingdom Home Office, Country of Origin Information Report- Sudan, 11 September 2012
United Kingdom: Home Office, Operational Guidance Note: Sudan, August 2012
United States’ Department of State,2012 Country Reports on Human Rights Practices – Sudan, 19 April 2013