Ireland - High Court, 1 March 2012, J.T.M. v Minister for Justice and Equality, Ireland and the Attorney General,[2012] IEHC 99
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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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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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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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More favourable provisions
Description
Many of the instruments of the EU asylum acquis currently set out only minimum standards. “It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions”. According to Article 5 of the Asylum Procedures Directive: “Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with this Directive.” Similarly, according to Article 4 of the Reception Conditions Directive: “Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.” |
Headnote:
This was the substantive hearing of a case in which leave to seek judicial review of a subsidiary protection decision was granted on the basis that (a) it was arguably erroneous to conclude that because State protection was available in respect of the actions of non-State agents who inflicted serious injury on the Applicant, the said injury could not amount to "serious harm;" and (b) The decision failed to consider whether, arising out of the previous harm suffered by the Applicant, compelling reasons existed to warrant a determination that she was eligible for subsidiary protection. The Applicant was successful on both grounds and the decision was quashed by the Court.
Facts:
The Applicant was a Nigerian woman who applied for asylum and subsequently for subsidiary protection. She had entered into an arranged marriage at the age of 16 years and was unable to have children. She suffered from Sickle-Cell Anaemia. The Applicant recounted serious ill-treatment, rape and torture at the hands of her husband and his associates, which left scars on her body and which continued to traumatise her. Her credibility was not in doubt. She was refused asylum because internal protection was found to be available to her.
The decision-maker in the challenged subsidiary protection decision found that the Applicant had not suffered “serious harm” because the harm was required to have been carried out by “actors of serious harm” in order for it to meet the definition of “serious harm”. In this case, no evidence was found that those who had inflicted the injuries were “actors of serious harm”.
The decision-maker did not consider whether compelling reasons existed to warrant a determination that she was eligible for subsidiary protection under a power which Ireland legislated for in addition to the terms of the parent Directive when transposing it.
Decision & reasoning:
The decision-maker in the challenged decision considered that previous “serious harm” was defined by reference to what constituted “actors of serious harm,” and found that non-State actors can only be considered to be “actors of serious harm” if it can be demonstrated that the State, or those controlling the relevant portion of it, are unable or unwilling to offer protection. Because the Applicant had not shown that this was the case, there was no evidence that the Applicant had suffered treatment which came within this definition of “serious harm” in Nigeria.
Because the Directive sets out factors to be taken into consideration by the decision maker before granting subsidiary protection, the Court held that neither the Directive nor the transposing legislation dictated that "serious harm" be defined in a way that it must only have been carried out by “actors of serious harm.” The Court held that the definition of “actors of serious harm” may be relevant to a determination without it necessarily excluding from protection a person who suffered serious harm by an actor falling outside of that definition. However, the Court accepted that the fact of serious harm being inflicted by an actor outside of the definition of “actors of serious harm” may impact on whether an Applicant is unable or owing to such risk unwilling to avail themselves of the protection of that country.
The Respondent contended that the incorrect definition would not impact on the decision because the Applicant had failed to demonstrate that she could not avail of either State protection or relocation given that the abuse and torture she suffered from was carried on by her husband and his associates. The Court disagreed with the Respondent’s submission on the basis that the Irish law allows for a person to be granted subsidiary protection where compelling reasons arising out of pervious serious harm alone may warrant the granting of protection, and the decision-maker could not have considered this issue having already failed to identify any previous serious harm at all on foot of the incorrect definition attributed to the term “serious harm”.
The Court also held that the erroneous definition of "serious harm" may have infected the assessment of the facts and circumstances under the Irish regulations transposing Article 4 of the Qualification Directive, such as the consideration of the statements of the Applicant as to whether she has been or may be subjected to persecution or serious harm or the personal circumstances of the Applicant in establishing whether she could be exposed to what would amount to "serious harm".
Outcome:
The application for judicial review of the subsidiary protection decision was granted on both grounds for which leave had been previously granted, and the contested decision was quashed.
Observations/comments:
The paragraph at issue in this decision which refers to previous “serious harm” being defined by it having been inflicted by “actors of serious harm,” was upheld as correct in law in the subsequent case of W.A. [DRC] v Minister for Justice and Equality & Ors. [2012] IEHC 251. However, the facts of the W.A. case differed considerably to those before the Court in J.T.M., where the nexus between the definition and the conclusion reached was the true issue and the effect of impugned definition was different. The differences in the two cases was noted in the subsequent case of N.N. [Cameroon] v Minister for Justice and Equality & Ors. [2012] IEHC 499 – where the definition in W.A. [DRC] was preferred.