Hungary - Metropolitan Court, 15 October 2009, I.A.Z. v. Office of Immigration and Nationality, 21.K.31555/2009/6
Keywords:
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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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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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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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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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." |
Headnote:
The decision of the asylum authority was annulled on the basis that there was insufficient evidence that an internal protection alternative existed.
Facts:
The applicant, from Somalia, left her country of origin on the 13th of October 2008. She traveled to Turkey through Dubai by plane and arrived in Hungary on the 2nd November 2008. In 2006 two of her children were killed in front of her and another disappeared. She was raped and robbed, and her husband was beaten several times. She recognised that her attackers were soldiers who were members of the temporary government. The soldiers belonged to tribes of superior classes. She claimed that they intended to kill people that belonged to minority groups. Her neighbours took her to relatives living in another area, where she spent almost two years. This was a forest "village" - which consisted of nothing more than a couple of makeshift wooden huts in the forest. There were no roads, no sewage disposal and no facilities for protection and defence. The women living in these makeshift huts were regularly exposed to violence from different armed groups. The applicant’s husband was also killed while she was hiding in the forest. The applicant explained that since Ethiopian groups arrived in the country, the situation became even worse, as they also killed people who belonged to minority groups.
The asylum application was rejected by the Office of Immigration and Nationality (OIN) in the administrative procedure. The OIN found that the reasons why she fled her country of origin in 2008 could be regarded as a ground for persecution set out in the 1951 Refugee Convention. The OIN also pointed out that discrimination based on membership of an ethnic group (national minority) is also recognised as persecution. The OIN accepted the applicant had a valid ground to claim persecution, provided that she was a victim of sexual assault because of her Asharaf origin.
The OIN considered, however, that the applicant had found internal protection against persecution within her country of origin for two years. Between 2006 and 2008 she benefited from the internal protection alternative within Somalia and had an opportunity to continue with her life. The OIN granted tolerated status to the applicant as she could not substantiate individual persecution or serious harm (due to the availability of an alternative protection alternative), but found that she would face treatment contrary to Art 3 of the ECHR upon her return to Somalia, and granted her ‘tolerated status’.
The applicant’s lawyer claimed that living in makeshift huts under extremely harsh conditions and being exposed to attack by armed groups did not constitute internal protection within her country of origin.
Decision & reasoning:
The Court held that, although the applicant was able to stay in Somalia from 2006 until 2008, the decision of the OIN could not be regarded as lawful given that:
“the authority could not identify a specific territory where the internal protection alternative would be possible.”
The asylum authority therefore breached its obligation by failing to collect all of the relevant facts and evidence before making its decision. The court stated that:
“The OIN has to indicate whether the internal protection alternative is available and if so, in which specific territory of Somalia.”
The court did not address the question whether the applicant’s hiding in the forest without any sort of protection constituted internal protection.
Outcome:
The decision of the OIN was annulled and the OIN had to re-examine the application in the repeated procedure.
Subsequent proceedings:
In the repeated procedure the applicant was granted refugee status by the asylum authority at first instance.
Observations/comments:
The OIN failed to apply the internal flight alternative properly. The OIN’s argument was inconsistent in itself - claiming that the applicant was not subject to persecution and then acknowledging that the rape she suffered could be regarded as persecution. The Court quashed the first instance decision purely on the basis of formalities and failed to consider the past persecution and the circumstances of the alleged internal protection alternative in order to change the decision and grant refugee status to the applicant. Despite the well documented medical evidence the court did not take into consideration that the applicant suffered from PTSD but insisted that the applicant’s credibility was refuted.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Act LXXX of 2007 on Asylum - Art 12(1) |
| Hungary - Act LXXX of 2007 on Asylum - Art 63(2) |
| Hungary - Act LXXX of 2007 on Asylum - Art 13 |
Other sources:
UNHCR Guidelines on International protection (7 May 2002): “Membership of a particular social group” within the context of Art 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, para 12, 19 and 20.
UNHCR Guidelines on International protection: “Internal Flight or Relocation Alternative” (23 July 2003): within the Context of Art 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, para 15 and 27.