Hungary - Metropolitan Court of Public Administration and Labour, 20.K.31492/2016/9, 14 June 2016
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
The applicant arrived in Hungary as a child and her affiliation with Falun Gong was not properly adjudicated by the asylum authority (OIN) but her asylum application made as an adult was considered a subsequent one. Relying on Article 5 (3) of the Recast Qualification Directive, the OIN considered that the applicant and her mother were malevolent when joining Falun gong solely to evoke their sur place status. The court ruled that the OIN failed to individually assess the applicant’s claim and quashed the decision.
Facts:
The applicant’s mother became a follower of Falun Gong and the applicant joined her as a child in 1998. Later this became her belief as well. Both participated in demonstrations in front of the Chinese Embassy in Budapest and because of their political activities they were denied passports in 2003 after which they could not prolong their residence permits. Later the mother decided to seek asylum in Hungary with her daughter. The application was rejected but tolerated status (protection against non-refoulement) was granted in the four consecutive years (2004-2008).
In the procedure reviewing their protection status OIN argued that the fact that the applicant and her mother cannot be granted refugee status or subsidiary protection is a res iudicata, the court has already decided on this matter and the OIN is bound by that. The applicant then submitted an asylum application on her own which was rejected but subsidiary protection was granted in 2016. OIN claimed that to be recognised as a refugee in sur place cases it is essential that the same (political or religious) activity was already started in the country of origin which does not apply to the applicant as she arrived here as a minor. OIN claimed that the harm suffered by the applicant (denial of the passport) is not severe enough; followers of Falun Gong are imprisoned in China. As new circumstances could not be evoked the OIN decided the same as before and considered the claim a subsequent one.
The applicant claimed that her asylum application of 2015 is the first one that she submitted on her own therefore this should not be treated as a subsequent claim and her good faith should not have been examined at all under Article 5 (1) of the recast Qualification Directive.
The applicant claimed that the CJEU cases C-71/11 and C-99/11 are applicable in her case namely that there cannot be a requirement to abandon or conceal her beliefs just to avoid persecution. The Office of Immigration and Nationality (OIN) upheld that this claim must be considered a subsequent one and that the applicant caused herself the administrative problems suffered by participating in demonstrations therefore refugee status cannot be granted to her.
Decision & reasoning:
The court sustained the appeal and quashed the decision due to serious procedural mistakes and the lack of individualisation in the administrative decision. The court ruled that the application should be re-examined by the OIN and all individual circumstances of the applicant and her affiliation with Falun Gong should be assessed. The denial of the individual assessment of the claim renders it unlawful.
The court emphasised that the OIN wrongly assessed the conditions under Article 5 (2) of the QD whereas it considered the existence of similar political activities necessary but the text only says “in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin”. The court ruled that only getting to know Falun Gong in Hungary is not an obstacle to grant refugee status sur place.
The court ordered the personal hearing of the applicant in the repeated procedure in order to reassess her individual circumstances relying on Section 43 (2) b) of the Asylum Act.
Outcome:
Appeal granted, decision quashed, new procedure ordered.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-71/11 and C-99/11 Germany v Y and Z |