Hungary - Metropolitan Court, 23 September 2009, M.A.A. v. Office of Immigration and Nationality, 21.K.31484/2009/6
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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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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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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. |
Headnote:
The Office of Immigration and Nationality (OIN) found the applicant not credible and therefore did not assess the risk of serious harm. Instead the OIN granted protection against refoulement. The Metropolitan Court ruled that the OIN was obliged to assess conditions for subsidiary protection and serious harm even if the applicant was not found credible.
Facts:
The applicant, a Somali national, claimed asylum because he was discriminated against on the grounds of belonging to an unprivileged (minority) tribe. People that belong to such tribes could not decide where they worked, they were continuously robbed by members of superior (majority) tribes or they were taken into forced labour. He claimed that people belonging to the Hawiye clan came to his house several times to capture him for the purposes of forced labour or to fight him. He managed to escape when captured for forced labour.
The asylum application was rejected by the OIN in the first instance administrative procedure. The applicant was granted tolerated status (see observations below) based on the application of the principle of non-refoulement. The applicant was deemed not credible as he could not substantiate that he was from Mogadishu, Hodan district. The OIN pointed out that the applicant could not name the streets of his hometown, although he lived there for 23 years, and he could not substantiate his residence in the capital. The applicant’s account, including his route of travel, was found not credible. According to the OIN, the applicant failed to establish persecution grounds. The OIN found that the applicant had failed to prove individual persecution, which could be considered as serious harm.
Decision & reasoning:
The Metropolitan Court accepted the OIN’s arguments that the reasons why the applicant had to flee his country of origin could not be accepted as persecution grounds as set out in the 1951 Refugee Convention. Given that the applicant could not name a single street in his hometown, where he lived for 23 years, he was also deemed not credible by the court.
The Metropolitan Court applied the Jurisprudence of the Court of Justice of the European Union (C-465/07. Elgafaji), which examined the notion of generalised violence and indiscriminate violence, and found that Mogadishu was affected by an internal armed conflict where the level of indiscriminate violence was high enough to qualify as serious harm.
Regarding the issue of forced labour, the Court pointed out that this was a general problem in Somalia, so it did not affect the applicant specifically.
The Court stated that the OIN did not assess the risk of serious harm and the principal of non-refoulement properly, and did not collect and consider all relevant information and evidence. Therefore, the risk of serious harm needed to be analysed in a new procedure.
Outcome:
The OIN’s decision was annulled regarding it's findings on the distinction between serious harm and the protection against refoulement The OIN was obliged to open a new procedure.
Subsequent proceedings:
The application was rejected again by the OIN and the applicant was finally granted subsidiary protection by the Court in April 2011.
Observations/comments:
Although the Court had the competence to change the unlawful decision of the OIN and grant protection to the applicant, it failed to do so therefore the repeated procedure lasted another 18 months until the final judgment was made.
Tolerated Status: non-EU harmonised form of protection agains refoulement based on Art 3 of the ECHR, please see section 51 of the Act II of 2007 on the entry and stay of third-country nationals, available in Hungarian at: http://jogszabalykereso.mhk.hu/cgi_bin/njt_doc.cgi?docid=107401.518283