France - Council of State, 3 July 2009, Ofpra vs. Mr. A., n°320295
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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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. |
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Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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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 requirement of an individualisation of the threat to the life or person of an applicant for subsidiary protection is inversely proportional to the degree of indiscriminate violence which characterises the armed conflict.
Facts:
The applicant, from Sri Lanka, lodged an asylum application to the French Office for the Protection of Refugees and Stateless Persons (Ofpra) which was rejected. On appeal, the CNDA granted the applicant subsidiary protection in a decision dating from the 27 June 2008. The Ofpra claimed that this decision should be quashed by the Council of State.
Decision & reasoning:
Firstly, according to Article L.712-1 Ceseda [which transposes Article 15(c) of the Qualification Directive], the Council of State considered that generalised violence giving rise to the threat at the basis of the request for subsidiary protection is inherent to the situation of armed conflict and characterises it. The Council of State considered that according to the interpretation of this provision, as well as, the provisions of the Qualification Directive, the violence and the situation of armed conflict coexist in all regards on the same geographical zone.
Secondly, the Council of State stated that the existence of a serious, direct and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that he/she proves that he/she is specifically targeted because of elements which are specific to his/her personal situation as soon as the degree of indiscriminate violence characterising the armed conflict reaches such a high level that there are serious and established grounds for believing that a civilian, if returned to the country or region concerned, would, by his/her sole presence on the territory, face a real risk of suffering these threats.
Outcome:
In the present case, the Council of State considered that the decision of the CNDA was sufficiently reasoned and that it had sovereign power to consider that there was a climate of generalised violence resulting from a situation of international or internal armed conflict in the East of Sri Lanka where the applicant used to live. The Council of State also considers that the CNDA did not make any legal error in deducting from the high level of generalised violence prevailing in this area that the applicant faced a real risk of suffering serious, direct and individual threats.
The Council of State therefore rejected Ofpra's appeal.
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.
As mentioned in the study “Safe at last – Law and Practice in selected EU Member States with respect to asylum seekers fleeing indiscriminate violence” (UNHCR Research Project, July 2011), in Belgium, France and Sweden, the assessment of whether the intensity of violence is sufficiently high that substantial grounds are shown for believing that a civilian would solely on account of
his/her presence on the territory run a real risk of harm to his/her life or person is performed as part of the evaluation of whether there is an international or internal armed conflict in these Member States.
This decision is an application of the CJEU’s interpretation in Elgafaji v. Staatssecretaris van Justitie (CJEU, 17 February 2009, C-465/07) in France. The same wording was used in another decision from the Council of State (CE, 24 août 2011, M.A., n°341270). However, these circumstances no longer correspond to the situation in Sri Lanka since the victory, in May 2009, of the government forces which defeated the Tamil guerilla. A few months after these events, the CNDA suspended the effects of the above-mentioned case law and considered that the situation in Sri Lanka could no longer be considered as a situation of armed conflict under the meaning of Article L.712 c) Ceseda (see, for ex., CNDA, 9 juillet 2009, M.P., n°070006621).
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 |