Finland - Helsinki Administrative Court, 25 Oct 2010, 10/1389/1
Keywords:
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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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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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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
Subsidiary protection was granted on grounds that the applicant, from Iran, could be at risk inhuman or degrading treatment. The applicant based his asylum claim on the political activities of his brother in his country of asylum, as well as his own participation in protests in Iran. The Court found that after having spent two years in Finland as an asylum seeker it was likely that the applicant would be of special interest to the Iranian authorities.
Facts:
The applicant, from Iran, has a Kurdish background and is an atheist. The asylum application was based on the applicant’s and his brother’s political activity, and the consequent difficulties with the authorities in Iran. The applicant’s brother has been resident in his country of asylum for eight years. The applicant was arrested and interrogated by the Iranian authorities on numerous occasions regarding his brother’s activities in his country of asylum. He was also assaulted and tortured by the authorities. After participating in a protest which was violently suppressed by the authorities, the applicant’s home was searched. After leaving Iran, people visited the applicant’s home looking for him.
Decision & reasoning:
The Court stated:
The applicant’s description of events was consistent with the country of origin information available from Iran. According to the country of origin information, ordinary citizens, and those who have previously been arrested for political activities, as well as their relatives, have faced arrest. The Iranian authorities have attempted to monitor the political activities of its citizens abroad, and those voicing critical opinions may have had their relatives arrested in Iran. The death penalty has been decreed for those who renounce the Islamic faith.
The applicant has not been in a position of leadership or any other public role. He has also not belonged to any political party. The applicant has come to the attention of the authorities precisely due to his brother’s political activities. His brother was granted refugee status due to his political activities.
If the applicant were returned to Iran, after having spent two years in Finland as an asylum seeker, it was likely that the Iranian authorities would consider him as having participated in his brother’s activities. The Court was of the opinion that if he was to be returned, he might be of special interest to the authorities and at risk of inhuman or degrading treatment.
Outcome:
The Administrative Court overturned the Immigration Service’s decision and stated that the applicant should be granted a residence permit on the grounds of subsidiary protection.