France - CNDA, 9 June 2009, Mr. H., n°639474/08019905
| Country of Decision: | France |
| Country of applicant: | Somalia |
| Court name: | National Asylum Court/Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 09-06-2009 |
| Citation: | CNDA, 9 juin 2009, M.H., n° 639474/08019905 |
| Additional citation: | Cour nationale du droit d’asile, 9 juin 2009, M.H., n° 639474/08019905 |
Keywords:
| Keywords |
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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.” |
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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 Mogadishu must be seen as a situation of generalised violence resulting from a situation of internal armed conflict. Its intensity is sufficient to consider that today the applicant faces a serious, direct and individual threat to his life or person, without being able to prevail himself of any protection.
Facts:
The applicant, from Somalia, was a member of the Sheekhaal sub-clan and to the Hawiye clan He was born in Mogadishu in 1990. Since his birth he suffered the consequences of the fighting in Mogadishu. His family’s house was confiscated by armed militia; his father was killed; his brother was forcibly recruited by fundamentalist militia and died in war. He managed to flee Somalia in 2008. He applied for asylum at the French Office for the Protection of Refugees and Stateless Persons (OFPRA) Ofpra which rejected his application. He lodged an appeal against this decision before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA).
Decision & reasoning:
The Court considered firstly that there was no reason to believe that the acts from which the applicant suffered were linked to his ethnic origin or to any other ground listed in Article 1A(2) of the 1951 Refugee Convention. The applicant therefore did not qualify as a refugee.
Secondly, the Court examined the situation which prevailed in Somalia at that time and its deterioration due to the violent fighting between the Federal Transitional Government and several clans and Islamic militia. The Court considered that, in some geographical areas, in particular in and around Mogadishu, the fighting was at the time characterised by a climate of generalised violence which included the perpetration of acts of violence, slaughters, murders and mutilations targeted at civilians in these areas. The Court therefore considered that this situation must be seen as a situation of generalised violence resulting from a situation of internal armed conflict.
Finally, the Court considered that the situation of generalised violence, due to its intensity in the applicant’s region of origin, was sufficient to find that he currently faced, a serious, direct and individual threat to his life or person, without being able to avail himself of any protection.
Outcome:
Subsidiary protection was granted to the claimant.
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.
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