Poland - Polish Council for Refugees, 12 March 2012, RdU-495-2/S/11
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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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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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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 authorities of first and second instance—the Head of the Office for Foreigners and the Polish Council for Refugees—refused to grant refugee status or other forms of protection to an applicant from Uganda who had applied for refugee status because of his sexual orientation. They made the same decisions but on fundamentally different grounds and factual findings. The first instance authority found that the applicant was homosexual but that the information about the country of origin indicated that his fear was not well-founded. The second instance authority found that homosexuals are at risk of persecution in Uganda but that the applicant was not homosexual, and the opinion of a doctor who is a sexologist did not prove sexual orientation. Instead, this needed to be proved based on the testimony of the applicant, which is then verified in the context of his general credibility during the proceedings.
Facts:
In 2009, a Ugandan applied for refugee status in the Republic of Poland on the grounds of fear of persecution in his country of origin, due to his homosexuality.
The first instance authority ordered the applicant to present a report issued by a sexologist to confirm his homosexuality. Documents were also presented during the proceedings concerning his arrest for engaging in homosexual relations in a public place.
The first instance authority found that the foreignor was indeed homosexual but did not find the documents concerning the arrest credible. The authority also acknowledged the fear expressed by the foreignor of returning to his country of origin. The authority also found, however, that this fear was not justified by objective circumstances, i.e. the situation prevailing in the foreignor's country of origin. In this regard, the authority said that homosexual relations are indeed criminalised but that these regulations are not applied in practice. Persecution within society did occur, but this was also rare.
The foreignor appealed against this decision. The Polish Council for Refugees, as the authority of second instance, upheld the decision by the first instance authority.
Decision & reasoning:
The position of homosexuals in Uganda is so bad that merely being homosexual means persecution is very likely, thus justifying the fear of the applicant. Both the fact that homosexual relations are criminalised and the fact that this law is applied in practice, albeit only to a limited extent, are relevant to this finding. The very existence and application of laws that criminalise homosexual relations may constitute sufficient grounds for refugee status to be granted, as this situation meets the test for legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner.
A report by a doctor does not prove the sexual orientation of the applicant. A one-line report indicates that it was not based on any extensive examination performed in order to establish the applicant's sexual orientation. As many different factors govern human sexual orientation, there are no objective medical procedures enabling the orientation of a given person to be determined beyond doubt. The opinion of doctors or psychiatrists cannot be taken as evidence in this regard. This question should be resolved based on the testimony of the applicant, which should be assessed in the context of his general credibility during the course of the proceedings. If he is generally found unreliable in the proceedings, this will have an effect on the assessment of his stated sexual orientation as the basis for applying for protection.
Outcome:
The refusal by the first instance authority was upheld.
Subsequent proceedings:
The foreignor appealed against the decision by the second instance authority to the Regional Administrative Court in Warsaw. In its judgment of 20 November 2012, case reference V SA 1048/12, the court overturned the decision and found that the Polish Council for Refugees had not been entitled to question evidence in the form of an opinion by a specialist in sexology. Currently, the case is pending before the second instance authority.
Observations/comments:
This case is important from the point of view of standards in relation to establishing the key fact in proceedings of this type, namely the sexual orientation of the applicant. Even though the Polish Council for Refugees, in its decision, criticised the opinion of the doctor as evidence of the individual's particular sexual orientation, the Regional Administrative Court in Warsaw did not take a view on whether the presentation of this type of evidence as such or the administrative authority's order that such evidence be presented were legitimate.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Report entitled Fleeing Homophobia, University of Amsterdam, 2011