France - CNDA, 31 March 2011, Mr. A., n°100013192
Keywords:
| Keywords |
|
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). |
|
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. |
|
Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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.” |
Headnote:
The situation which prevails today in some geographical areas of Somalia, in particular in and around Mogadishu, must be seen as a situation of generalised violence resulting from a situation of internal armed conflict, in the meaning of Article L.712-1 c) Ceseda [which transposes Article 15 (c) of the Qualification Directive].
Facts:
Mr. A., a Somali national from the Tuni clan, was born in Mogadishu and lived there until 1993. He went back to his village in order to escape from the fighting and he and his father were abducted by unknown armed individuals who forced them to work. His father managed to escape and had not received any news since then. In 1999, Mr. A. managed to escape and, after tracing his family with no result, he went to Mogadishu where an Imam, a friend of his family from the Hawiye clan, received him in his home and raised him as his nephew. He married a young woman from this clan. When her family discovered that he belonged to the Tuni clan and his true identity, they attacked him. He fled his country and applied for asylum in France. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. In his appeal, the applicant requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant him refugee status or, failing that, subsidiary protection.
Decision & reasoning:
The CNDA first stated that the alleged acts of violence against him and his family circle, because of his clan origin, were not established and that nothing enabled the Court to believe that the applicant would face persecutions linked to one of the grounds mentioned in Article 1A(2) of the 1951 Refugee Convention.
Regarding subsidiary protection, the CNDA recalled that the well-founded nature of the protection claim of the applicant has to be assessed in light of the situation which prevails in Somalia. The Court stated in particular that this country experienced a new and significant deterioration of the political and security situation since the beginning of 2009; that this deterioration resulted from violent fighting against the forces of the Federal Transitional Government and several clans and Islamic militia; that this fighting was currently characterised, in some geographical areas, in particular in and around Mogadishu, by a climate of generalised violence including the perpetration of extortion, slaughters, murders and mutilations targeting civilians in these areas; that consequently this situation must be seen as a situation of generalised violence resulting from a situation of internal armed conflict, in the meaning of Article L.712-1 c) Ceseda [which transposes Article 15 (c) of the Qualification Directive].
The Court added that this situation of generalised violence, due to its intensity in the region of origin of the applicant, who is moreover made vulnerable by his isolation because of the disappearance of his family, is sufficient to allow the Court to consider that this individual currently faces a serious, direct and individual threat against his life or his person, without being able to avail himself of any protection.
The applicant therefore has a well-founded claim for subsidiary protection under Article L.712-1 c) Ceseda [which transposes Article 15 (c) of the Qualification Directive].
Outcome:
Subsidiary protection was granted to the applicant.
Observations/comments:
Article 15 c) of the Qualification Directive is transposed in French legislation by Article L.712-1 c) Ceseda.
Article L.712.1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.
Under French legislation, the threat should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.
It is important to note that this CNDA decision is well reasoned (including in terms of COI, which is still quite unusual in the practice of the CNDA). The reasoning is quite similar to another CNDA decision regarding the situation in Somalia (CNDA, 9 juin 2009, n° 639474/08019905, M.H. also summarised in this database).
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1 |
Other sources:
UN Security Council Resolution 1872, 26 May 2009.
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Somalia, 5 May 2010 (HCR/EG/SOM/10/1)