Hungary - Metropolitan Court, 8 April 2010, K.H. v. Office of Immigration and Nationality, 15.K.31.662/2009/16
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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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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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 Office of Immigration and Nationality (OIN) rejected an application for asylum and did not assess the risk of serious harm because the applicant was deemed not credible. The Metropolitan Court found this decision unlawful and ordered that the risk of serious harm be analysed in a new procedure. Furthermore, the Metropolitan Court found the assessment of non-refoulement unlawful, since all the available country information assessed concerned Serbia, however, the applicant's country of origin was Kosovo.
Facts:
The applicant, a Kosovan national of Roma origin (together with his wife and son (a minor)), was threatened by unknown masked armed persons in 2005. They threatened to kill his child, and he and his wife were raped. They took all of their money, and threatened that they would return for €50, 000. They were threatened with further violence if they could not get the money. The applicant and his family also had problems with Serbians and Albanians.
The asylum application was rejected by the OIN in the first instance administrative procedure. The applicant was deemed not credible. The original documentary evidence submitted to prove the applicant’s ethnic Roma origin was not found authentic; therefore the applicant and his family were regarded as ethnic Albanians from Kosovo. The OIN claimed that upon their interception by the Police the applicant and his family claimed to be ethnic Albanians and only later stated that they are Roma. In addition, 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. Furthermore, the OIN stated that the applicant could not substantiate his well founded fear of persecution. Both refugee status and subsidiary protection were rejected.
Decision & reasoning:
The Metropolitan Court stated that if the OIN, - lacking the necessary expertise - had any doubts regarding the authenticity of the submitted documents, it had to obtain an expert opinion. The Court pointed out that the OIN did not deem the applicant credible and did not accept him as an ethnic Roma.
It cannot be disregarded that during the court proceedings the applicant provided a certificate issued by the European Roma Rights Centre (ERRC) stating that the applicant was a Roma from Kosovo. Furthermore, after having heard their account before the court, the Metropolitan Court found the applicant and his wife absolutely credible. The contradictions were not relevant and did not affect the merits of the case. With regards to the fact that the OIN failed to assess the risk of serious harm because the applicant was not deemed credible, this needed to be analysed again in a new procedure. The OIN incorrectly assessed the principle of non-refoulement exclusively in relation to Serbia; however the applicant claimed to be from Kosovo. Therefore, the Court found the risk assessment of both serious harm and refoulement by the OIN was incorrect.
The Metropolitan Court stated that:
“In the new procedure the OIN has to ask for the opinion of an expert regarding the documents at issue, and has to assess the existence of serious harm separate from credibility. In addition, the OIN has to request relevant country of origin information regarding Kosovo.”
Outcome:
The decision of the OIN was quashed and it was obliged to start a new procedure.
Subsequent proceedings:
The applicants’ claim was again rejected. The second Court review is pending.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Act LXXX of 2007 on Asylum - Art 12 |
| Hungary - Act LXXX of 2007 on Asylum - Art 45 |