Sweden - Migration Court of Appeal, 17 March 2017, UM 911-16
| Country of Decision: | Sweden |
| Country of applicant: | Afghanistan |
| Court name: | Migration Court of Appeal |
| Date of decision: | 17-03-2017 |
| Citation: | UM 911-16 |
Keywords:
| Keywords |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
The Migration Court of Appeal considered the applicant’s ability to obtain subsidiary protection status based on his need for protection as a Shia Hazara and a minor.
The Court denied the appeal by the Migration Agency and granted the defendant subsidiary protection status.
Facts:
The applicant is an Afghan citizen, Shia Muslim, his ethnicity is Hazara and he is born in the province of Ghazni. The applicant and his family fled to Iran when he was a young child.
The applicant was granted a permanent right of residency by the Swedish Migration Agency due to his particularly distressing circumstances. Hence, the sole issue considered by the Migration Court of Appeal was whether the applicant should be granted subsidiary protection.
Decision & reasoning:
The court held that the applicant could not be considered a refugee on the basis of being a Shiite Hazar and a minor, since neither of these circumstances on their own or combined is a sufficient reason to obtain the status as refugee according to the criteria outlined in the Law on Aliens.
However, the court deemed that the applicant’s personal circumstances made him particularly vulnerable. In line with this, the court stressed the dangerous situation for minors without a network and local knowledge in Afghanistan, in particular Afghan children are vulnerable to sexual abuse, forced marriage and forced recruitment.
Subsequently, the Court deemed that the applicant ran an individual and specific risk of being the victim of violence and other types of inhuman or degrading treatment if returned to Afghanistan. Based on this, he was granted subsidiary protection status.
Outcome:
Subsidiary protection granted.
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 2 Abs 3 |
| Sweden - Law on Aliens chapter 1 and 2 |
Cited Cases:
| Cited Cases |
| Sweden - MIG 2009:36 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| ECtHR- A.M.E. v. The Netherlands, (Application no. 51428/10), 13 January 2015 |
Other sources:
Jrf UNHCR’s guidelines on international protection No 12 pt 9., no 8
CCPR, 4 july 2016, 2464/2014