Finland - Supreme Administrative Court, 18 March 2011, KHO:2011:25
| Country of Decision: | Finland |
| Country of applicant: | Afghanistan |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 30-03-2011 |
| Citation: | KHO 2011:25 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
Headnote:
The applicant came from a district in Afghanistan, which according to up-to-date country of origin information, also contained areas judged as being safe. When considering internal protection for subsidiary forms of international protection, the decision maker must also consider whether or not the applicant is able to reach these areas safely. The roads could not be considered safe and the other presented routes were also not considered feasible for the applicant. As the applicant could not resort to internal protection elsewhere, he was granted a residence permit on the grounds of humanitarian protection in accordance with section 88 a § of the Aliens’ Act.
Facts:
The applicant is a Hazara from the province of Ghazni, in the county of Jaghur. According to up-to-date country of origin information (COI) these areas were safe regions in the province of Ghazni. UNHCR stated in July 2009 (UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009) that the Taliban had increased its attacks in Ghazni. The Finnish Immigration Service considered in the first instance decision that the security situation in Jaghur did not give rise to grounds for international protection in accordance with the Aliens Act section 88 a §. The Immigration Service also considered that an internal protection alternative was available to the applicant.
The applicant had moved to Iran at the age of 13 and returned to Afghanistan after 13 or 14 years. He had no residence permit in Iran. The Immigration Service considered that it was possible for the applicant to relocate to live in Kabul as he previously left Afghanistan for Iran and returned.
The Helsinki Administrative Court overruled the decision of the Immigration Service. Concerning the claim for humanitarian protection, the Helsinki Administrative Court stated: ”The security situation in Afghanistan has weakened and the violence has increased during 2009" According to the COI (UNHCR: Afghanistan Security Update Relating to Complementary Forms of Protection, 6.10.2008), the actions of the Taliban affected civilians in southern parts of Ghazni, while the northern parts with Hazara-majority were more peaceful. The road to Jaghur was considered to be unsafe. As relatives constitute the main security network in Afghanistan, UNHCR had asked states not to return asylum seekers to states other than their home region or to regions where they previously have lived and where they have the support of relatives and tribe members. According to the COI available, the applicant could not return safely to Ghazni, Jaghur due to its security situation. Also there was no secure access to the more secure parts of Ghazni.
The Immigration Service asked for a leave to appeal at the Supreme Administrative Court which was granted. According to the Immigration Service’s opinion there was an option of internal protection as the applicant had stayed in another country and moved back to Afghanistan, he would also have the option for internal protection in Afghanistan at that stage.
Decision & reasoning:
The Supreme Administrative Court stated:
When considering the other alternatives for international protection it must be noted, that when returning a person to the country of origin, the access to the region must be safe in practice. The route was not safe. In addition the other possibilities of travel, proposed by the Immigration Service in its appeal, could not be used as applicable for a single asylum seeker.
It has not become apparent that the applicant would have any other safe place to go to in his country of origin. The security situation in Ghazni is poor and weakened during 2009. According to the COI it is not obvious that an armed conflict exists throughout the Ghazni province, especially not in Jaghur county. When considering whether a safe return is available, the same matters must be evaluated as when considering an internal protection alternative. The security situation in the country in question may not fulfill the definition of an armed conflict, but this does not mean that an applicant cannot be returned there.
A return to Jaghur, which was considered to be safe, would require a safe and reasonable access route. When considering a safe return, it must also be noted, whether the potential violence and attacks in regions nearby may affect in a way that would prevent or considerably complicate the ability to return to the region and/or opportunities to take care of basic needs of human life. Return cannot be considered safe where the region would be at risk of being isolated.
Finnish authorities would not accompany the applicant to his place of origin. The only route to Jaghur would be by the Kabul-Kandahar highway, which is not safe. considering the circumstances of the applicant internal protection is not a reasonable option. Therefore, the applicant must be issued with a residence permit on the basis of humanitarian protection.
Outcome:
The Supreme Administrative Court refused the appeal and maintained the decision of the Helsinki Administrative Court.
Relevant International and European Legislation:
Other sources:
UNHCR, Afghanistan Security Update Relating to Complementary Forms of Protection, 6 October 2008
UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, July 2009