Greece – Council of State, 31 December 2008, 4056/2008
| Country of Decision: | Greece |
| Country of applicant: | Afghanistan |
| Court name: | The Council of State, Chamber D |
| Date of decision: | 31-12-2008 |
| Citation: | Council of State 4056/2008 |
| Additional citation: | http://www.unhcr.gr/prostasia/nomiki-prostasia/o-nomos-stin-ellada.html |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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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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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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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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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established. When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity.
Facts:
Application by K. R. for annulment of a decision by the Minister of Public Order
The Applicant, a citizen of Afghanistan, illegally entered the country in November 2001, via the island of Kos, arriving from Turkey. He was arrested by Kos Coast Guards and was transferred to the Aliens Department in Thessaloniki where, on 3.12.2001, he submitted an application for recognition of refugee status, citing a fear of persecution because of his race and his religion. More specifically, the Applicant – who was 15 at the time of submitting his application for asylum – told the competent Administrative bodies that he belongs to the Hazara tribe and that he is a Shiite Muslim. Furthermore, he claimed that he was forced to leave Afghanistan when he was 13 years old because of the civil war, given his race and the religious and political problems which prevailed in the country and which made it difficult to find employment. The asylum application was rejected by decision number 95/41971/9.8.2002 of the General Secretary of the Ministry of Public Order, and the Applicant appealed against this on 17.9.2002. Before the Advisory Committee formed pursuant to Article 3(5) of Presidential Decree 61/1999 the Applicant repeated his claims about his race; he stated that he was living in the Juvenile Asylum Seekers' Hostel run by the National Youth Institute in Anogeia, Crete, where he was taking certain lessons; and he asked, additionally, to be given temporary leave to stay in the country on humanitarian grounds. The Committee, after giving a majority ruling that the conditions for recognition of refugee status and granting asylum under the 28.7.1951 Convention had not been met in the case of the Applicant, expressed a wish that he be allowed to remain in the country temporarily on humanitarian grounds. Next, in his contested decision 9135/41971/5.3.2004 which has already been appealed against, the Minister for Public Order rejected the Applicant's appeal and gave him a three-month deadline in which to leave the country voluntarily. On 8.6.2004 the Applicant submitted an application for relief to the Minister for Public Order, seeking a review of his case. Pursuant to that application, the Immigration Department of the Security and Order Branch of the Ministry of Public Order issued Order no. 95/41971-352893/9.7.2004 which, regarding the Applicant's request to be allowed to remain in the country temporarily on humanitarian grounds, referred specifically to the previous rejection of the application by the Minister for Public Order's above-mentioned decision. The Applicant submitted a further application to the General Secretary for Public Order requesting a review of his application to be placed under the special humanitarian status of Article 8 of Presidential Decree 61/1999, pursuant to which a similar Order (95/41971-514723/24.9.2004) was issued, according to which the Applicant's renewed application was an abuse of procedures and did not require any response.
Decision & reasoning:
The Council of State cited the relevant Articles of international, European and domestic legislation which relate to asylum applications by unaccompanied minors, both mandatory provisions and ones of a non-binding nature which, nevertheless, recognize that this particular category of asylum seekers is special and that special procedural guarantees have been established for them. The Council of State pointed out that this special treatment consists not only of ensuring that minors have the proper representation and guidance through the asylum procedure, but also of compliance with certain guiding principles when examining the merits of the case. In particular, when examining asylum applications submitted by unaccompanied minors, one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. The Council of State took into consideration the fact that, when he submitted his initial application for recognition as a refugee, the Applicant was 15 years old and was not accompanied by his parents or any other guardian. The Council of State held that, based on the evidence in the file, the Administration did not take care to ensure that a special temporary representative was appointed for the Applicant; and that there is no reference in the 4.12.2001 report on the oral examination to there having been an assessment by the body to determine the level of his mental maturity. Furthermore, during the administrative examination procedure the Applicant cited his race (Hazara), his religion (Shiite Muslim) and the prevailing situation in his country, in order to establish that there was a fear of persecution should he return to Afghanistan; and he made a subsidiary request to be given temporary leave to stay in the country on humanitarian grounds.
The Council of State accepted that the Applicant, before the Administration, had cited the existence of objective factors which, considering what was common knowledge about the prevailing situation in Afghanistan at the time the contested decision was issued, were in themselves sufficient to establish grounds for the application for asylum; and given that, in any case, recognition of a foreigner as having refugee status does not require evidence that he has been subjected to individual persecution, it is sufficient to establish an objective and well-founded fear of persecution. Regarding the Applicant's pleas for protection on humanitarian grounds, even though the Council of State recognized that they were vague, it held that the Administration ought, taking into consideration the special circumstances of the case, to have examined whether the Applicant was justified in citing the existence of the said objective factors. Furthermore, the Council of State held that the Administration's reasoning for the rejection was insufficient and that it did not comply, in this case, with the required special procedural guarantees. On the contrary, the Administration should have interpretedthe true sense of the Applicant's claims, and specifically investigated whether the latter would be at risk of persecution should he return to Afghanistan, given the prevailing conditions in that country, because of his race origin, his religion, and also, maybe, membership of a particular social group (young male Hazara), in order to judge if there was a prima facie case for recognizing the Applicant's refugee status or, otherwise, if it was possible to grant him a temporary residence permit on humanitarian grounds. Because of the insufficient reasoning, which had justifiably been challenged, the Council of State accepted the application, annulled the contested decision, and referred the case back to the Administration for a new hearing.
Outcome:
The Council of State upheld the application.
It annulled decision no. 9135/41971/5.3.2004 by the Minister for Public Order and referred the case back to the Administration for a new hearing.
It ordered the court fees to be returned.
It ordered the State to pay the Applicant's legal costs.
Subsequent proceedings:
The case was referred back to the Administration (Minister for Public Order)
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Greece - Council of State, 11 October 2005, 3337/2005 |