Hungary – Metropolitan Court, 17 December 2010, H.M.A. v. Office of Immigration and Nationality, 6.K.30.022/2010/15
Keywords:
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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-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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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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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. |
Headnote:
The applicant’s claim for refugee status was rejected as Convention grounds were not established, however, subsidiary protection was granted in the alternative by the court on the basis of grave human rights violations and the prohibition of torture (Art 3 of the European Convention on Human Rights (ECHR)).
The court accepted the argument that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act)
Facts:
The applicant, from Baghdad Iraq, claimed that as a result of a conflict with his former wife’s family he was threatened, forced to divorce and his son was also kidnapped. He stated that he would face persecution if returned to Iraq and that the state authorities could not protect him since the family of his ex-wife was influential.
The Office of Immigration and Nationality (OIN) rejected the application and found that the applicant could not substantiate a Convention ground for persecution. His claim was based on a family conflict, of an economic nature. However, in its decision the OIN granted tolerated status based on the real risk of a breach of Art 3 of the ECHR on return to Iraq (prohibition of refoulement).
Decision & reasoning:
The Metropolitan Court ruled that the applicant could not substantiate that he would face persecution for one of the five Convention grounds. The court also found that the OIN failed to specify on which basis the tolerated status was granted. The court established that given the fact that the same conditions apply for granting subsidiary protection as for the protection under the principle of non-refoulement the higher protection status should have been granted to the applicant unless exclusion arose. When assessing if the applicant qualifies for subsidiary protection the court ruled that Art 15 (b) of the Qualification Directive may give rise to more general situations where human rights might be violated or the applicant may be the victim of torture or inhuman, degrading treatment not only in internal armed conflicts as under Art 15 (c) of the Qualification Directive.
Outcome:
The applicant and his minor children were granted subsidiary protection under Art 15 (b) of the Qualification Directive.
Observations/comments:
The court accepted the applicant’s arguments that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Hungary - Metropolitan Court, 30 September 2009, D.T. v. Office of Immigration and Nationality 17.K.33.301/2008/15 |
| Hungary - Metropolitan Court - 17. K. 30. 307/2009/8 |
| Hungary - Metropolitan Court, 16 March 2009, 24. K. 33.913/2008/9 |