Luxembourg - Administrative Tribunal, 338530, 27 June 2017

Facts:

The applicant applied for asylum on 24 July 2015, but was rejected on 29 August 2016.

Decision & reasoning:

The attack against the applicant at his place of residence constitutes, according to the judge, a serious proof of the persecution the applicant was exposed to.

The fact that homosexuality is a criminal offense in the country of origin constitutes in itself a serious indication to the persecution the applicant may have been subjected to. However, the applicant must still prove that he is individually concerned by a risk of persecution. In practice, the applicant is not being sued by the authorities and so is unable to justify this persecution as grounds for his application.

Regarding protection, the violence against the applicant has been committed by private parties, but the protection may be found to be absent if the State is unable or unwilling to provide protection to the applicant in this instance. Here, the tribunal found that it was impossible for the applicant to engage with the authorities on this matter.

However, the authorities also found that there was a possibility of internal flight if the following three conditions are fulfilled: the applicant is not at risk of being persecuted or to be subjected to such risks, the area should be accessible both practically and legally and finally, it should be reasonable to expect the applicant to move there.

The judge further found that, on the basis of CJEU case law, the authorities cannot expect the applicant to hide his sexual identity in his country of origin during an application examination. However, the applicant could have stopped the practice of “homosexual prostitution” in order to no longer run the risk of persecution.  

In order to appreciate the internal flight possibility, it is important for the judge to take into consideration the specificities of the situation of the applicant as specified by UNHCR guidelines. The conclusion here is that internal flight remains a possibility. The possibility of internal flight challenges the conditions provided regarding subsidiary protection, which has now become irrelevant.

Outcome:

The tribunal rejected the appeal.

Subsequent proceedings:

An appeal against this decision was lodged by the applicant before the Administrative Court of Appeal. The Court rejected the appeal and confirmed the Tribunal's decision with its judgment no. 39507C of 27 June 2017.

Observations/comments:

The original version of this case summary was written by Passerell a.s.b.l.