Luxembourg - Administrative Tribunal, 3rd Chamber, 38651, 11 July 2017
| Country of Decision: | Luxembourg |
| Country of applicant: | Iraq |
| Court name: | Administrative Tribunal |
| Date of decision: | 11-07-2017 |
| Citation: | 38651 |
Keywords:
| Keywords |
|
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:
On top of the usual conditions, the tribunal takes into consideration climate conditions and the consequences on the population in its examination of a subsidiary protection application.
Facts:
On 22 July 2017, the applicants applied for asylum, which was rejected on 05 October 2017 and the applicants appealed this decision on 02 November 2016.
Decision & reasoning:
The fact that one of the applicants is wanted by the militia for a crime that he might have committed does not fulfill the requirements laid down in the 1951 Geneva Convention provisions.
The tribunal found that the security situation in Iraq can be likened to a “situation of civil war between several actors” ever since the fall of S. Hussein: terror attacks against the civilians are perpetrated in public places and the militia are repeatedly violating human rights and using torture.
Also, the judges agree that the Sunni population is not exposed to any more risks than the rest of the population. Accordingly, the refusal to grant refugee status is founded on that.
Regarding subsidiary protection, the tribunal found that the terror attacks also take place in less densely populated areas (cf : TA, 05.07.2017, n° 37908).
The existence of an internal armed conflict makes it impossible to ask for protection from the authorities.
Additionally, the judge took into account the difficult environmental conditions particular to Iraq and the difficulties that result from this for the population; the conditions are “difficult to bear for people used to living in very warm conditions”.
Outcome:
The tribunal accepted the appeal and granted subsidiary protection to the applicants.
Subsequent proceedings:
The decision was appealed before the Administrative Court. A judgment was issued on 12 December 2017 (Judgment no. 39980C) overturning the July decision. The appellate court considered that the situation in Baghdad had not seriously deteriorated and that there was no risk of serious harm nor any particular circumstances to believe that the complainant should be granted subsidiary protection status.
Observations/comments:
Beyond the usual considerations (internal armed conflict, ability to get protection from the authorities, etc.), the tribunal examines a new element: the environmental conditions that can render a return difficult, if not impossible, for Iraqi applicants.
The original case summary was written by Passerell a.s.b.l.
Cited National Legislation:
| Cited National Legislation |
| 39 |
| Luxembourg - Law of 18 December 2015: articles 2 b |
| 34 |
| 37 |
| 42 |