Hungary - Metropolitan Court of Public Administration and Labour, 6 March 2015, 7.K.34.513/2014/11
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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
This case examines the refusal to grant international protection status to a physically disabled, single Egyptian woman. The OIN failed to provide clear, detailed reasoning why the Applicant did not meet the legal conditions to acquire subsidiary protection status in Hungary.
The Metropolitan Court of Public Administration and Labour granted subsidiary protection status to the Applicant and concluded that based on cumulative grounds the Applicant would be subject to torture, cruel, inhuman or degrading treatment or punishment if she returned to Egypt.
Facts:
A disabled, single Egyptian woman applied for asylum in Hungary. The applicant was born disabled. In Egypt the buildings, along with public spaces were not equipped for disabled persons’ access and she faced discrimination several times during her life. In Egypt, no specific treatment is available for disabled persons; they are not integrated into society. As a result, only the family may provide help for disabled persons. However, the Mother of the applicant, who was also her “carer”, was abusive towards her (both physically and psychologically). For this reason, the Applicant left Egypt and applied for international protection in Hungary.
The Office of Immigration and Nationality (OIN) rejected her application. An appeal was lodged against the OIN’s decision by the Hungarian Helsinki Committee (representing the Applicant). According to the reasoning of the OIN's decision, domestic violence cannot be the sole ground for the recognition of refugee status if the given country has adequate sanctions. In Egypt, domestic violence is penalised under the Egyptian criminal law, however the enforcement of the law faces deficiencies.
The OIN also claimed that overall, there was no systematic discrimination of disabled persons in Egypt. The OIN emphasised that the same provisions apply to disabled persons as for other members of the society.
Decision & reasoning:
The Court stated that the Applicant was a vulnerable person and the Act LXXX of 2007 on Asylum shall be applied to persons in need of special treatment with due consideration to the specific needs arising from their situation.
The Court emphasised that persecution is the basic condition to obtain international protection.
The Court agreed with the claim of the Applicant as the reasoning of the OIN’s decision was not detailed enough with regards to substantiating why the Applicant did not meet the legal conditions to gain subsidiary protection status in Hungary. The OIN used the same reasoning for the examination of the asylum status as for the subsidiary protection status, and the Court ruled that this was not appropriate in the administrative procedure.
The Court examined whether the Applicant would be subject to torture, cruel, inhuman or degrading treatment or punishment if she had to return to her country of origin, to Egypt. The Court again emphasised that the Applicant was a vulnerable person therefore the Act LXXX of 2007 on Asylum shall be applied to persons in need of special treatment with due consideration.
The Court took into account the personal circumstances of the Applicant, and the cumulative grounds, such as that the Applicant has limited opportunities, she was single, physically disabled, and she would have to rely on her Mother if she returned to Egypt, who was seriously abusing her physically and psychologically. As a result, the Court came to the conclusion that various elements are involved in the situation of the Applicant and overall, she would be subject to torture, cruel, inhuman or degrading treatment or punishment if she returned to Egypt. The Court granted subsidiary protection status to the Applicant.
Outcome:
The decision of the OIN was modified, the Applicant was given subsidiary protection status and other parts of the Applicant’s claim were rejected.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
- Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees – Point 51
- UNHCR Guidelines on International Protection – Points 3 and 6
- U.S Department of State- Human Rights report issued on 27 February 2013
- Information given by the Immigration Liaison Officer at Cairo (29 April 2014)
- Procedural Guideline of the United Kingdom Home Office – discrimination against women in Egypt