Hungary - Metropolitan Court, 11 July 2013, M.A.A. v Office of Immigration and Nationality (OIN), 6.K.31830/2013/6
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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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
It must be noted that the Applicant’s occupation as a pharmacist meant that according to the country of origin information, he could be a target group for the country`s security forces if they suspected that assistance was being provided to the insurgents. This was considered to constitute the Applicant`s imputed political opinion to be taken into consideration in light of the right to asylum, in other words, circumstances to be considered pursuant to the Geneva Convention.
Facts:
The Applicant and his wealthy family were living in Damascus when the insurgents threatened them that any supporters of the ruling Bashar al-Assad regime would face death. The Applicant’s children attended the same school as those of Assad. Previously, two children from this school had been kidnapped and the insurgents had demanded ransom for them. The insurgents from Homs previously had contacted the Applicant to purchase medical drugs from him. Following the above, the country’s security forces arrested the Applicant twice, interrogating him about his sales. The Applicant, thanks to his contacts, found out that he was listed and being monitored.
Decision & reasoning:
The OIN rejected the application, however, it granted the Applicant subsidiary protection status.The Court recognised the Applicant and his family’s (wife and two children) refugee status as the risk of indiscriminate violence threatening the lives of civilians is present in the country of origin.
The Court rejected the OIN’s argument that physical abuse or serious atrocity would be required to establish the Applicant’s risk of being persecuted. The right to asylum must also be provided for those whose fear of persecution is well-founded. According to the UNHCR Handbook, this does not necessarily need to be based on previous personal involvement or experience. The Court accepted that the reason for flight, beyond the Syrian situation, was to provide the children with an education (they attended the same school as the President’s children), and that the Applicant and his wealthy family had well-founded reasons to fear that their children would fall victims to kidnapping.
The Court stated that it is well-known and well-documented that the Syrian government continuously violates both international human rights standards and humanitarian law. In this atmosphere, the Applicant reasonably feared that both his interrogations by the security forces could have ended badly thanks to the excess amount of medication he sold to the rebel opposition. It must be noted that the Applicant’s occupation as a pharmacist meant that according to the country of origin information, he could be a target group for the country`s security forces if they suspected that assistance was being provided to the insurgents. This was considered to constitute the Applicant`s imputed political opinion to be taken into consideration in light of the right to asylum, in other words, circumstances to be considered pursuant to the Geneva Convention. Pursuant to Section 53 of the UNHCR Handbook, the Applicant's experiences and potential threats and not individual incidents should constitute the overall basis for recognition as refugee.
Outcome:
The Court recognised the Applicant and his family`s refugee status.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
2012 Human Rights Report by the US Department of State, Bureau of Democracy, Human Rights and Labour