Spain - High National Court, 3 November 2010, 555/2009
| Country of Decision: | Spain |
| Country of applicant: | Bangladesh |
| Court name: | High National Court |
| Date of decision: | 03-11-2010 |
| Citation: | 555/2009 |
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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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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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Stateless person
Description
Person who is not considered as a national by any State under the operation of its law. This includes also a person whose nationality is not established. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The applicant sought asylum in Spain claiming to have suffered persecution in Bangladesh on the grounds of membership of a group (the Beharies) determined by its ethnic identity. This persecution intensified when the war with Pakistan broke out. The Ministry of Interior refused the application which was appealed by the applicant to the High National Court. This court examined if persecution under the 1951 Refugee Convention could be established, beyond a case of discrimination.
Facts:
The applicant was born and lived in a refugee camp in Dhaka. He was part of the ethnic group of “Beharies”. Being a member of this group resulted in the applicant being denied basic human rights. He also lacked documentation and education.
After the outbreak of the war with Pakistan, the Beharies became particularly isolated and had no opportunities to overcome this situation. Therefore, the applicant decided to flee. He entered Spain in 2007 claiming that he suffered persecution in Bangladesh on the grounds of membership of a group (the Beharies) determined by its ethnic identity.
The Ministry of Interior refused the application, declaring that the facts alleged did not amount to persecution according to the 1951 Refugee Convention. Moreover, the facts alleged reflected a situation of statelessness.
Decision & reasoning:
The High National Court stated that, even though the case fell under the scope of statelessness, that did not constitute an obstacle to obtaining protection, as the 1951 Refugee Convention is also applicable to stateless persons. The case could constitute persecution on the grounds of nationality since this concept is not confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, national minority or even race.
In undertaking this examination the Court considered a report issued by the UNHCR on this specific case stating that the “membership of the Beharies ethnic group is the reason why the applicant can’t be returned to his country of origin”.
Once all these factors were taken into account, the Court ruled that the persecution alleged wasn’t sufficiently proven and, even though discrimination against the applicant was undoubtedly proven, this discrimination did not amount to persecution as defined by the 1951 Refugee Convention.
Nevertheless, the applicant could be granted residence in Spain for humanitarian considerations as a consequence of the serious conflict in his country of origin and the actual risk of suffering inhuman or degrading treatment in case the applicant was returned.
Outcome:
The appeal was partially successful: refugee status was refused and a residence permit in Spain was granted for humanitarian reasons.