Italy - Ordinary Tribunal of Milan, 31 March 2016, n. 64207
Keywords:
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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. |
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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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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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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. |
Headnote:
The Italian consolidated Law on Migration (Art. 5(6) n. 286/1998) requires humanitarian protection to be given where a person is in a situation of vulnerability. Such a situation occurs when the applicant’s constitutional and international fundamental rights, such as health and nutrition, are compromised.
Facts:
A Gambian citizen requested international protection in Italy and was heard by the Territorial Commission of Milan (the competent administrative body). Before the Commission the applicant relied upon his activism within the UDP, a Gambian political party, and the acts of persecution he faced on the part of the Islamic Government in charge.
The Territorial Commission refused any kind of protection to the applicant, because it did not consider the alleged active participation of the applicant within the UDP to be credible. In particular, the Commission did not deem the applicant trustworthy because he had repeatedly referred to the wrong date for the election of the Gambian President; and this was an unlikely mistake for a genuine political activist.
The applicant appealed the decision before the competent Tribunal of Milan.
Decision & reasoning:
1) The judge dismissed the request for the asylum status agreeing with the Territorial Commission that the applicant’s alleged participation in the UDP party was not credible.
2) The judge also dismissed the subordinate request for subsidiary protection. He deemed the request both inadmissible and unfounded.
The request was considered inadmissible because the applicant had not clarified what kind of serious damage amongst those defined by art. 14 of the Legislative Decree 251/07 (implementing the 2004 Qualification Directive) he would risk being subject to upon his return.
The judge further affirmed that the request was unfounded. In this respect, he underlined that Gambia was not considered either by the UNHCR, or the CJEU (see Elgafaji v. Staatsecretaris van Justitie; Diakitè) to be a State characterised by indiscriminate violence due to an ongoing armed conflict. The Tribunal, therefore, found the reasoning underpinning Elgafaji to not be applicable.
3) The judge, however, accepted the alternative request for humanitarian protection.
He firstly observed that, according to Art. 5(6) n. 286/1998 (Italian consolidated Law on Migration), as interpreted by the Court of Cassation (see inter alia judgment n. 22111/2014), humanitarian protection has to be granted to people in a situation of vulnerability, namely those whose fundamental rights codified in constitutional and international law are compromised. In addition, the judge remarked that this protection has a residual nature the requirements of which are distinct from those of refugee or subsidiary protection status. (Cass. 4139/2011; 6879/2011; 24544/2011).
Secondly, the judge affirmed that it is undisputable that an individual is in a situation of vulnerability where his rights to health and nutrition, which stem from the right to life, are jeopardised. . In addition, he recalled that these rights are protected by the Italian Constitution (Art. 34), the Universal Declaration of Human Rights (Art. 25), and the International Covenant on Economic, Social and Cultural Rights (Art. 11).
Finally, as to the specific case, the judge noted that data shows that in Gambia there is widespread poverty which seriously compromises access to nutrition and medical treatment. Additionally, the undertaking of such a lengthy and perilous journey would not have been done if the applicant’s life conditions in the country of origin had been above the threshold of acceptability. , Consequently, the judge concluded that returning the applicant to his country would be a violation of the aforementioned fundamental rights, and therefore granted the applicant humanitarian protection.
To further corroborate his conclusion, the judge underlined that it is immaterial that the above mentioned interpretation may allow a massive recognition of humanitarian protection. Indeed, fundamental rights are universal and therefore not to be granted in limited numbers.
Outcome:
The Judge refused the request for asylum and the request for subsidiary protection.
The Judge recognised the applicant has being entitled to humanitarian protection.
Observations/comments:
The above summarised ordinance is not one of a kind. On the contrary, since 2014 several similar judicial decisions have been taken which have granted humanitarian protection against the refusal of the Administrative Territorial Commissions. (see the following ordinances: Tribunal of Venice, 5 February 2016, R.G. 4767/15; Tribunal of Trieste, 29 June 2015, R.G. 3128/14; Tribunal of Rome , 17 March 2016, R.G. 7822/2014; Tribunal of Trieste, 14 October 2014, R.G. 2435/2012)
All of these decisions were based on the general serious risk to the individual’s fundamental rights in case of return to the country of origin. This risk was inferred by taking into account the general social, political and humanitarian situation of the place of origin, regardless of personal specific circumstances of the third country national, and regardless of the fact that the risk is not foreseen by the framework relating to asylum and subsidiary protection. Furthermore, in some cases the humanitarian protection was also granted giving due consideration to the applicant’s successful integration.
Particular attention can be payed to the ordinance of the Tribunal of Rome, 17 March 2016, R.G. 7822/2014. The reasoning of the decision is especially interesting because it highlights that, according to the literal interpretation of art. 5(6) of the Italian Consolidated Law on Migration, humanitarian protection does not necessarily have to be justified on the basis of specific international or constitutional norms, but can also be simply grounded on the need of protecting human rights, as generally imposed by art 2 of the Italian Constitution.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| CJEU - C-285/12, Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides |
Other sources:
ICESCR, Art. 11
N General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art. 25.
http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=60®ionSelect=2-Southern_Africa
https://www.amnesty.org/en/countries/africa/gambia/report-gambia/
http://www.state.gov/r/pa/ei/bgn/5459.htm
https://www.gov.uk/foreign-travel-advice/gambia
UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Gambia;
UK Home Office: The Gambia Report (http://www.refworld.org/country,,,,GMB,,567121e14,0.html)
US Department of State: 2014 Reporton International Religious Freedom:
http://www.refworld.org/country,,,,GMB,,55fab8164,0.html
http://www.refworld.org/country,,,,GMB,,562f6f6815,0.html
http://www.imf.org/external/index.htm
http://www.ruralpovertyportal.org/fr/country/home/tags/gambia