Finland - Helsinki Administrative Court, 3 September 2013, Hehao 13/1012/3
| Country of Decision: | Finland |
| Country of applicant: | Afghanistan |
| Court name: | Helsinki Administrative Court |
| Date of decision: | 03-09-2013 |
| Citation: | Hehao 13/1012/3 |
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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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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. |
Headnote:
The Helsinki Administrative Court took the view that a residence permit had to be granted to an Afghan asylum seeker on the grounds of subsidiary protection due a threat of vendetta based on a land dispute.
Facts:
The Appellant was born and had lived most of his/her life in Iran but he/she was an Afghan citizen. The Appellant belongs to a tribe called the Saids. The Appellant applied for asylum in Finland because of his/her ethnic background and a vendetta based on a land dispute. The Appellant was deported from Iran to Afghanistan around 2005-2006 where he/she purchased a plot of land with the intention of building a house on the plot. However, the Appellant faced problems because of his/her ethnic background and he/she returned to Iran from where he/she was told that the previous owner had started to build on the Appellant’s plot and refused to cede the plot to the Appellant. The Appellant complained to the authorities who recommended that the Appellant sell the plot to a third party. After the sale, the Appellant was attacked and he/she was knifed but managed to escape and returned to Iran. The previous owner of the plot threatened to kill the Appellant because during the fight the Appellant injured one of the attackers, rendering him blind. The Immigration Service rejected the appeal regarding asylum and the residence permit and decided to deport the Appellant to Afghanistan. The Immigration Service accepted the Appellant’s account of the problems relating to the plot of land and also that after selling the plot on, he/she was attacked by two people. However, the Immigration Service took the view that it was unlikely after several years have passed, the previous owner of the plot would still be interested in the Appellant and would threaten him/her. In addition, the Immigration Service took the view that the Appellant was not in danger of being persecuted because of his/her ethnic background. The Appellant sought the repeal of the decision by the Immigration Service and that he/she be granted asylum or a residence permit based on subsidiary protection or individual or humanitarian reasons.
Decision & reasoning:
The Administrative Court took the view that the Immigration Service had sufficiently investigated relationships between the Hazards and the Saids and that, based on the account given, there were no grounds to believe that the Appellant was in danger of being persecuted because of his/her ethnic background. The Administrative Court took the view that the threat against the Appellant was not based on the Appellant’s race, religion, nationality, membership of a particular social group or political opinion and therefore he/she is not under threat of persecution as specified in Section 87, Article 1 of the Aliens Act. However, the Court took the view that although several years have passed since the land feud took place and the Appellant had sold on the plot in question, the Appellant had injured a person close to the previous owner of the plot during the fight regarding the land dispute, resulting in this person being blinded. Based on the country of origin information regarding the vendetta it is possible that the Appellant could be subjected to acts of revenge and even be killed. In cases like this, no protection from the authorities is available, nor is it possible to relocate internally. Under Section 88 1, Article 1 Section 23 of the Aliens Act, it was deemed that the Appellant was in need of subsidiary protection.
Outcome:
The Helsinki Administrative Court rejected the appeal on asylum but repealed the Immigration Service’s decision in other respects and returned the case back for a review. Under Section 88 1, Article 1, Sections 1 and 2 of the Aliens Act, the Appellant must be granted a residence permit.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Finland - Aliens Act - Section 88 § 1 |
Other sources:
Mousavi, Sayed Askar : The Hazaras of Afghanistan: An Historical, Cultural, Economic and Political Study: Surrey: Curzon Press, 1998,UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, August 2013. Report from Danish Immigration Services fact finding mission to Kabul, Afghanistan 25 February to 4 March 2012