Spain - High National Court, 29 December 2010, 365/2010
Keywords:
| Keywords |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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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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. |
Headnote:
The applicant lodged an appeal before the High National Court against the decision to reject his asylum application in the preliminary examination phase. The application was rejected based on the fact that the persecution occurred in the past, the applicant had no current need for protection, and that the circumstances in the country of origin had changed. The applicant appealed stating that he had been granted “prima facie” refugee status by the UNHCR in Benin upon fleeing Togo. The High National Court stated that UNHCR certification did not amount to sufficient evidence of individualised persecution.
Facts:
The applicant alleged to have suffered persecution on the grounds of political opinion. He had been an active member of the opposition party to the current government and declared that his life would be at risk if he was returned to Togo.
The application was refused on the grounds that the political conflict alleged by the applicant was not on going. Moreover, the European Union had declared that democracy was restored in Togo.
Challenging this decision, the applicant stated that he had applied for asylum in Benin and was granted “prima facie’” refugee status by the UNHCR. (“prima facie” status was granted to a large group of refugees fleeing the conflict from Togo to Benin after the election was called in 2005). The applicant then went to Mauritania where he claimed asylum: UNHCR issued a recommendation to the Mauritanian authorities that the applicant should be granted asylum.
During the examination of the application in Spain, UNHCR issued a report that the application could be rejected in the preliminary examination phase.
Decision & reasoning:
The High National Court examined the evidence regarding UNHCR’s positive recommendations granting the applicant refugee status in Benin and Mauritania. The High National Court ruled that: “certification from UNHCR is not sufficient to determine the existence of individualised persecution’’.
Outcome:
The appeal was not successful and the High National Court declared that the applicant should not be granted refugee status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Constitution - Art 24(1) |
| Spain - Constitution - Art 1 |
| Spain - Constitution - Art 3 |
| Spain - Constitution - Art 117(1) |