Hungary – Metropolitan Court, 22 September 2011, U.S. v. Office of Immigration and Nationality, 15 K 31.755/2011/12
| Country of Decision: | Hungary |
| Country of applicant: | Palestinian Territory |
| Court name: | Metropolitan Court |
| Date of decision: | 22-09-2011 |
| Citation: | 15 K 31.755/2011/12. |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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.” |
Headnote:
The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.
Facts:
The applicant is a Palestinian from the West Bank. He claimed that he was kidnapped by armed Islamist groups (Islam Jihad and Fatah) on several occasions. The Office of Immigration and Nationality (OIN) found that the applicant’s statements were not coherent and lacked credibility, therefore it rejected the application for refugee status and subsidiary protection. Furthermore, the OIN claimed that the applicant’s return to the West Bank would not amount to refoulement.
Decision & reasoning:
The Court assessed that the applicant could not substantiate his well founded fear of persecution or serious harm due to controversial statements that were found not credible. However, the OIN failed to assess the latest, up-to-date country of origin information (COI) regarding the principle of non-refoulement and the application of Art 3 of the European Convention on Human Rights (ECHR).
The Court found that the COI was remarkably contradictory and it ordered the OIN to re-examine whether or not the applicant would face torture or inhuman, degrading treatment or punishment upon return to the West Bank.
Outcome:
The Court quashed the decision and ordered the re-examination of the application with regard to the principle of non-refoulement.
Observations/comments:
The Court emphasised that the UK Foreign and Commonwealth Office confirmed that security has improved significantly in the West Bank and all but essential travel to the West Bank is no longer advised against. Relatively large numbers of international tourists and businessmen visit the West Bank without any incident. However, the situation had the potential to deteriorate.
The Canadian Foreign Ministry stated in its travel advice that the security situation in the Palestinian territories required a high degree of caution since the security situation was unstable.
This case does not follow the tendency of the Hungarian Courts (at the time of writing in January 2012) to suspend the court procedures of Palestinian applicants pending a preliminary question to the CJEU on the application of Art 12.1 of the Qualification Directive (e.g. the Bolbol case, C-31/09., 17 June 2010).
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UK Foreign and Commonwealth Office travel advice on Israel (5 August 2010)
Foreign Affairs and International Trade Affairs travel advice (11 August 2010)