Spain – Supreme Court, 16 February 2009, 6894/2005
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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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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Relevant Documentation
Description
“All documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” |
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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. |
Headnote:
The Applicant appealed before the Supreme Court against the decision of the High National Court to reject his application for refugee status. The applicant, his wife and their children claimed asylum alleging persecution on the basis of membership of a particular social group. Their claim was rejected at first instance on the grounds that the facts presented lacked credibility and the applicants could avail themselves of an internal protection alternative. On appeal before the Supreme Court, the decision of the High National Court was revoked and refugee status was granted.
Facts:
The applicant alleged that as he was working with a regional authority with public visibility, he was persecuted as a result of his professional status by serious death threats. He did not know the origin of these threats.
The High National Court considered, and the Attorney General reiterated, that the origin of the threats were unknown; therefore, this fact couldn’t be assessed. Also, it was stated that the applicant could have relocated to another part of the country where there was no well-founded fear of being persecuted. Contradictions were identified in the applicant’s case and it was also decided that the documentation provided by the applicant to prove the persecution alleged had only established his personal identity and some other personal characteristics but had not demonstrated the circumstances related to persecution he claimed to face.
Decision & reasoning:
This Court highlighted that the finding of serious flaws in the Colombian judicial system resulted in individuals being unable to flee persecution. The Court found that the applicant lived in a “red area” (an area controlled by Revolutionary Armed Forces of Colombia (FARC) paramilitary) and that the professional status of the applicant was especially relevant in that area.
The Supreme Court also considered the applicant’s claims credible and consistent with country of origin information on Colombia. The Court further held that being unaware of the origin of the death threats was credible and realistic when the circumstances of the applicant were assessed, and it is taken into account how the non-identification of agents of persecution is common in Colombia.
Regarding the availability of an internal protection alternative, the Court declared that internal relocation in Colombia could not be considered as a safe and effective option.
Outcome:
The appeal was successful and the Court declared that refugee status had to be granted (to the applicant with extension to his wife and their children).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-212/04 Konstantinos Adeneler and Others v ELOG |
Other sources:
UNHCR - International protection considerations regarding Colombian asylum-seekers and refugees.