Sweden - Migration Court of Appeal, 19 June 2018, UM16509 - 17
| Country of Decision: | Sweden |
| Country of applicant: | Afghanistan |
| Court name: | Migration Court of Appeal (Linder, Eriksson, Gullfeldt) |
| Date of decision: | 19-06-2018 |
| Citation: | UM16509 - 17 |
| Additional citation: | MIG 2018:14 |
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
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.” |
|
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. |
|
Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
|
Real risk
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. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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.” |
Headnote:
The applicant appealed the Migration Court’s decision to dismiss his application for asylum on grounds of the availability of an internal protection alternative in the applicants home country of Afghanistan.
The Migration Court of Appeal granted the appeal as it was held that the question of internal protection can only be assessed after the court has made an individual assessment of the original grounds for protection invoked by the applicant.
Facts:
The appellant, who is originally from a village in the Daikundi province in Afghanistan, moved to Iran as a fifteen year old following threats to his security by the village Mullah. He first applied for asylum in Sweden in 2015 on the grounds that the Mullah had imprisoned him, assaulted him and spread a false rumour that the appellant had destroyed a Quran. If the appellant would return to Afghanistan, he risks being killed by the Mullah, the Taliban or IS and he is therefore not safe in any part of the county.
In 2017 the Swedish Migration Agency rejected the appellant’s application for asylum on the grounds that although there was an individual threat posed by the Mullah to the appellant there was no reason to believe that the Mullah would search for the appellant outside the home village. Hence the Agency concluded that the appellant could not connect the threat to his security to the internal armed conflict in Mazar-e-Sharif, Heart and Kabul and he would therefore be able to seek internal protection in Afghanistan.
The appellant appealed the decision of the Migration Agency to the Court of Migration. The Court of Migration rejected the appeal as they considered that there were reasonable alternatives where the appellant could seek protection in Afghanistan and thus held that the appellant was not eligible for international protection. The court reached this decision without having considered the credibility of the appellant and the evidence presented by him regarding the threat to his security.
The appellant appealed the decision to the Migration Court to the Migration Court of Appeal on the grounds that the Migration Court’s judgement on the availability for the appellant to seek internal protection within Afghanistan was erroneous.
Decision & reasoning:
The Migration Court of Appeal held that the issue of the availability of internal protection is an integral part of the overall assessment of the individual asylum seeker’s necessity of protection. The question of whether or not internal protection is available is only pertinent once an assessment has been made regarding the asylum seeker’s necessity of protection from any part of the home country.
Hence, the procedure that the Agency - and Court of Migration should follow when assessing the necessity of individual protection is the following:
First, the credibility of the applicant’s stated identity, citizenship or country of origin shall be assessed.
In this instance the agency/court can find that the applicant’s statement is in itself strong enough to fulfil the criteria for granting protection. Alternatively, the applicant has made his or her statement credible by presenting evidence or by being judged as credible and thus being given the benefit of the doubt.
Once a necessity of protection has been established the agency/court can consider the availability of internal protection in the applicants home country. In order for such an alternative to be considered it must be deemed as a relevant alternative. This requires the area to be a place where the applicant has access to effective protection and where it is reasonable that the applicant uses such an alternative. The burden of proof in establishing the availability of internal protection in the applicant’s home country lies with the Migration Agency.
Hence, as the Court of Migration did not follow the proper procedure as they failed to consider the credibility of the appellant and the evidence presented by him to the Court regarding the threat to his security, the appeal was granted. Furthermore, the Migration Court of Appeal held that the case shall be re-introduced to the Court of Migration for a new examination.
Outcome:
Appeal Granted.
Subsequent proceedings:
Remitted to the Migration Court.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - 4 kap. 1 § och 2 § utlänningslagen (2005:716) |
Cited Cases:
| Cited Cases |
| Sweden - MIG 2007:9 |
| Sweden - MIG 2007:12 |
| Sweden - MIG 2007:33 II |
| Sweden - MIG 2009:4 |