Poland - Regional Administrative Court in Warsaw, 1 October 2012, V SA/Wa 873/12
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
The Convention relating to the Status of Refugees contains a finite list of grounds on which refugee status may be recognised and does not include victims of war, natural disasters, or famine, family situation, unemployment, lack of educational opportunities, or poverty.
The assessment of whether the foreignor's fear of persecution is justified must therefore be performed with reference to the individual case in question and in the light of the general social, legal, political, and economic situation of the country of origin of the foreignor applying for refugee status.
Facts:
M.N., a citizen of Uganda, applied for refugee status on 4 August 2010.
In his application, he said that he was gay, and that in his country of origin homosexual relations are not accepted. He had a boyfriend he would meet, but neighbours had spotted them together and informed the local authorities. After this, the applicant went to obtain a Schengen visa. At this time, the applicant's boyfriend told him by phone that both were sought by the local authorities. The applicant said that, as far as he knew, they wanted to arrest him for being gay.
The foreignor based his application for refugee status on his fear of arrest or even execution for being gay should he return to his country of origin. He also said that he was scared of the state and local authorities and the police, as he was facing a life sentence or execution for being gay. During the course of the proceedings, he also presented a certificate issued by a Polish doctor who was a specialist gynaecologist/sexologist, stating that, in terms of sexual orientation, he was homosexual.
The Head of the Office for Foreigners refused to recognise refugee status and also did not grant other forms of protection—subsidiary protection and right to remain—on the grounds that the foreignor had not cited credible grounds for his fear of persecution as referred to in the Convention relating to the Status of Refugees.
The Polish Council for Refugees upheld the decision by the Head of the Office for Foreigners, pointing to the foreignor's lack of credibility. The Council rejected the argument that he should be treated as a member of a persecuted social group and found that there was insufficient evidence that, should he return to his country of origin, he would be subject to persecution or other forms of repression. The foreignor appealed to the Regional Administrative Court against the decision of the Council to overturn the decisions that had not been in his favour.
Decision & reasoning:
The Regional Administrative Court allowed the appeal.
In assessing the foreignor's situation, the Court found that the Convention relating to the Status of Refugees contains a finite list of grounds on which refugee status may be recognised and does not include victims of war, natural disasters, or famine, family situation, unemployment, lack of educational opportunities, or poverty. The Court also noted that the definition of 'refugee' also does not cover those who are afraid of 'blood revenge', as such actions are criminal in nature and not tantamount to the persecution referred to in the Convention relating to the Status of Refugees.
According to the Court, the key element in the definition of a refugee is a 'well-founded fear of persecution'. This definition contains a subjective element, as 'fear' is a personal feeling and state of mind of the applicant. The term 'fear' is modified by the phase 'well-founded', which means that refugee status is determined not just with reference to the emotional state of the person in question—this state must also be supported by an objective assessment of the situation. Determining refugee status requires above all an assessment of the testimony of the applicant. This testimony may not, however, be examined in a vacuum—the context is relevant. The term well-founded fear therefore combines subjective and objective elements, and both must be considered when status is determined.
The assessment of whether a foreignor's fear of persecution is well-founded must therefore be performed with reference to the individual case in question and in the light of the general social, legal, political, and economic situation of the country of origin of the foreignor applying for refugee status.
The Court found that the Council had not justified why it had refused to treat the foreignor as a member of a particular social group, and the content of the decision in question also did not make clear why the authority had doubted the credibility of some of the foreignor's testimony.
The decision was found to have been issued in breach of fundamental principles of appeals procedure, as the grounds for the decision expressed no view on the grounds of appeal and did not refer to or assess the circumstances and evidence cited in the case, such as would enable an assessment of whether the decision by the first instance authority had been correct. The Court therefore found a breach of administrative appeals procedure.
In the assessment of the Court, these procedural flaws in the case meant that there had also been a failure to establish whether the foreignor, on returning to Uganda, would be arrested, tortured, or subjected to inhumane or degrading treatment or punishment so the refusal to provide him with any other form of protection was unfounded.
The Court also reminded the Council that, as an appeals authority, it is obliged ex officio to take into account changes in the facts and the law occurring after the issue of the contested first instance decision but before the second instance decision.
Outcome:
The Court overturned the contested decision.
Observations/comments:
The judgment concerns the concept of 'well-founded fear of persecution' and explains what kinds of cases do not fall within the scope of the definition of 'refugee' under the Convention relating to the Status of Refugees. The Court also stressed the significance of a detailed explanation in the grounds of an administrative decision as to why an application is refused and credibility is questioned and the need to make reference to all of the statements and grounds contained in the appeal.
The content of the judgment is available at the Central Database of Judgments:
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
General reference to the UNHCR Handbook.