Finland - Supreme Administrative Court, 30 Dec 2010, KHO:2010:84
Keywords:
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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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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The applicant was granted a residence permit on the grounds of subsidiary protection. Based on up-to-date accounts of the security situation in central Iraq he was found to be at risk of suffering serious harm from indiscriminate violence in Baghdad, his region of origin, in accordance with Section 88(1)(3) of the Aliens’ Act. The ruling of the CJEU in Elgafaji v Staatssecretaris van Justitie (C-465/07) was taken into consideration in the case.
Facts:
The Immigration Service rejected the applicant’s claim for asylum. The Immigration Service’s view departed from UNHCR guidelines in respect of Baghdad. The applicant appealed this decision to the Helsinki Administrative Court, which granted subsidiary protection. The Immigration Service appealed the grant of subsidiary protection to the Supreme Administrative Court (SAC). The applicant appealed in respect of the refusal to grant refugee status. At issue in the case was whether the security situation in central Iraq, and especially in Baghdad, met the requirements of subsidiary protection in this specific case.
Decision & reasoning:
The Court stated that an assessment of international protection includes assessments of both law and fact. The previous experience of the applicant in their country of origin should be taken into account, as well as current information concerning the security situation.
Regarding the Administrative Court’s decision to refuse the applicant refugee status the SAC held, after considering relevant up-to-date country of origin information, that the applicant had not demonstrated a well-founded fear of persecution in Baghdad because of his religious beliefs or ethnicity. It was further held that the applicant did not belong to a particular social group because of his academic background.
Regarding subsidiary protection, the SAC stated that both collective and individual factors must be reviewed. The SAC applied the reasoning of the CJEU in Elgafaji v Staatssecretaris van Justitie (C-465/07), stating that the more the applicant can prove a serious and individual threat, the less indiscriminate violence is required.
According to the Government Bill on the Aliens’ Act, international or internal armed conflict does not only cover armed conflict which is defined by the Geneva Conventions 1949 and its’ protocols of 1977, but also other forms of armed violence and disturbances.
Concerning humanitarian protection the Government Bill states that the risk of harm can also include that from the general situation in the country where anyone could be at risk, as opposed to individual targeting.
The SAC found that the applicant’s family members had personal and severe experiences of arbitrary violence and that the applicant himself has been threatened. These experiences did not prove that the risk of being a target of arbitrary violence concerned the applicant because of his individual features. These experiences must, however, be taken into consideration when evaluating the security situation, and especially how the violence, undeniably occurring in Baghdad, may be targeted at anyone indiscriminately.
The SAC also held there was no internal flight alternative in Iraq (based on UNHCR Eligibility Guidelines).
The SAC held that although recent developments had shown some improvements in the security situation there were no grounds to overrule the decision of the Administrative Court.
Outcome:
The decision of the Administrative Court was upheld. The applicant was granted subsidiary protection status and refused refugee status.
Observations/comments:
Case available on the website of the Supreme Administrative Court - http://www.kho.fi/paatokset/53130.htm
An unofficial English translation by UNHCR is available on Refworld at - http://www.unhcr.org/refworld/country,LEGAL,,,IRQ,,4ea028162,0.html
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |
| UK - HM and Others (Iraq) v. Secretary of State for the Home Department, CG [2010] UKUT 331 (IAC) |
| Sweden - MIG 2009:27 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
Other sources:
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, April 2009