Hungary - Metropolitan Court, 22 April 2011, 17.K30.864/2010/18
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Metropolitan Court |
| Date of decision: | 22-04-2011 |
| Citation: | 17.K30.864/2010/18 |
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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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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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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 applicant could not substantiate the individual elements of his claim with respect to his well-founded fear of a blood feud; however, he was able to satisfy the criteria for subsidiary protection. As a result of the armed conflict that was ongoing in the respective province in his country of origin (Ghazni, Afghanistan), the high intensity of the indiscriminate violence was deemed to be sufficient to be a threatening factor to the applicant’s life. As a result, the criteria of subsidiary protection were fulfilled.
Facts:
The applicant, an Afghan national, left his country of origin at age eight in 1998 fearing a family blood feud. A property dispute within his family escalated into a fight between his father and his uncle in which his father killed his uncle’s son. The applicant lived in Pakistan for a year and then went to Iran, where he lived for ten years. Although he was not directly and personally threatened, he feared that his uncle would kill him if he returned.
The asylum application was rejected by the Office of Immigration and Nationality (OIN) in the administrative procedure but the applicant was granted tolerated status (see observations below) based on the principle of non-refoulement. The OIN rejected his application for refugee status as the applicant could not substantiate that the reasons why he fled Afghanistan were grounds for persecution as set out in the 1951 Refugee Convention. Furthermore, he could not substantiate his well-founded fear of persecution. Both refugee status and subsidiary protection were rejected (15/01/2010).
The applicant appealed this decision to the Metropolitan Court.
Decision & reasoning:
The Metropolitan Court referred to UNHCR Guidelines on family blood feud. The Court stated that the applicant could not substantiate his well-founded fear of blood feud. According to the Court, this was a Pasthun tradition, so it was not likely that a rival group, the Hazaras (of which the applicant was a member), would follow this tradition as well. Therefore the applicant’s asylum claim was deemed unsubstantiated.
Regarding the applicants claim for subsidiary protection the Court assessed the risk of serious harm and stated that “during the armed conflict - that has been going on in the Ghazni province -, the indiscriminate violence has spread to such an extent as to threaten the applicant’s life or freedom.”
According to available country of origin information, the Court pointed out that the conditions in the country of origin of the applicant could qualify as serious harm that would threaten the applicant’s life or freedom. The Court examined the possibility of internal protection alternatives; however, since the applicant did not have family links in other parts of Afghanistan, it would not be reasonable for him to return back.
Outcome:
The decision of the OIN was overturned and the applicant was granted subsidiary protection by the Metropolitan Court.
Observations/comments:
Tolerated Status: non-EU harmonised form of protection against 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
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
UNHCR position on claims for refugee status under the 1951 Convention relating to the Status of Refugees based on a fear of persecution due to an individual’s membership of a family or clan engaged in a blood feud.