Hungary - Metropolitan Court, 16 March 2009, 24. K. 33.913/2008/9
Keywords:
| Keywords |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The Court replaced the decision of the OIN to allow the Applicant to remain on non-refoulement grounds (i.e. tolerated status), with a decision to grant the Applicant subsidiary protection status on the grounds that he would be at risk of serious harm on return to his home country (indiscriminate violence).
Facts:
The Applicant left Iraq in June 2007. In the previous year the Applicant had been kidnapped and interrogated about his ties to the government. He was held for 71 days. During the kidnapping he took a blow to his spine, which later had to be operated on. After being released, another armed group put him under surveillance. The Applicant received a letter from them, telling him to leave the area as otherwise they would kill him. The envelope also contained a bullet. The OIN rejected the Applicant’s request for refugee and subsidiary protection status, but found that non-refoulement applied.
Decision & reasoning:
The Court rejected the Applicant’s request for refugee status as the persecution he was subject to was in no way related to the reasons outlined in the Geneva Convention, in particular, membership of a particular social group. The Applicant’s kidnapping was the consequence of the general situation in the country.
The Court examined Article 15 b) and c) of the Qualification Directive. In this context the Court relied significantly on the judgment reached by the European Court of Justice on 17 February 2009 in Case C-465/07. Article 15 b) of the Qualification Directive assumes facts relating to the personal situation of the Applicant, which did not apply in the Applicant’s case. The subsidiary protection status contained in Section 61 c) of the Asylum Act and in Article 15 c) of the Qualification Directive is more general, and connected rather to the situation in the country than personally to the Applicant. The Court lists the conditions for subsidiary protection status in accordance with paragraph c). In the Applicant’s case, the violations of law affecting him are consequences of the general risk of harm and indiscriminate internal armed conflict, while according to the country information reports, the violence not only affects the Applicant’s place of residence but also most of the country. In contrast to non-refoulement, the granting of subsidiary protection status is not based on the extreme nature of the prevailing situation, but on the fulfilment of statutory conditions for granting the status. The conditions differ for the two legal concepts. If the country information indicates without any doubt that the conditions for subsidiary protection apply, the Applicant must be granted subsidiary protection.
Outcome:
The application for refugee status was rejected. However, the Court granted the Applicant subsidiary protection status.
Observations/comments:
The significance of the case lies in the fact that the OIN often rejects applications and finds that “only” non-refoulement applies, even when the conditions for granting subsidiary protection status are met. In the current case – and following the Elgafaji case – the Court elaborated a serious harm test in accordance with paragraph c), and declared that if the conditions apply, the Applicant must be granted subsidiary protection status instead of non-refoulement protection.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
Follower Cases:
| Follower Cases |
| Hungary – Metropolitan Court, 17 December 2010, H.M.A. v. Office of Immigration and Nationality, 6.K.30.022/2010/15 |