Sweden - Migration Court of Appeal, 19 April 2010, UM 6770-09
Keywords:
| Keywords |
|
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. |
|
Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
|
Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
|
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. |
|
Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The applicant could not provide sufficient proof of her claims that she had been subject to honour-related violence. The information was not found credible and did not constitute a permanent impediment for the enforcement of an expulsion order.
Facts:
The applicants, a Kurdish woman and her three children (hereinafter the applicant), applied on 30 March 2009 for a re-examination based on Chapter 12 Section 19 of the Aliens Act due to new circumstances (i.e. an extraordinary legal remedy). The applicant claimed that she would face persecution and risked honour-related violence in Turkey due to the fact that during the asylum process she had declared that a relative abused her sexually during her childhood. She also claimed that the family had close contacts with the Christian Church while in Sweden.
Both the Migration Board (21 April 2009) and the Migration Court (7 July 2009) denied the application as the applicant was not found to have presented any valid reason as to why she had not presented the information regarding honour-related violence earlier in the process.
During the proceedings in the Migration Court the applicant added that the reasons of not having presented the circumstance of former sexual abuse at an earlier stage in the process were due to her mental illness and that it was considered as taboo in Kurdish society.
The Migration Court of Appeal granted leave to appeal. In the proceedings, the applicant invoked the judgment by the European Court of Human Rights on 9 June 2009, Opuz v Turkey, (case no. 33401/02), to show that the Turkish authorities were unable to protect women from honour-related violence.
Decision & reasoning:
The reasoning by the Migration Court of Appeal was similar to that in the lower instances. The Court found that the persecution relating to gender the applicant claimed she risked on return had already been assessed in the earlier process. The Court also stated that although her contacts with the Swedish Church, and the sexual abuse and the honour-related violence invoked by the applicant, were indeed to be considered new circumstances under Chapter 12 Section 19, her lack of credibility in the information provided and the character of certain of the grounds did not constitute sufficient support for a re-examination to be granted.
Outcome:
The Migration Court of Appeal confirmed the previous decisions and denied the appeal.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Sweden – Migration Court of Appeal, 2 April 2008, UM 1436-07 |
| ECtHR - Opuz v Turkey (Application no.33401/02) |
| Sweden - MIG 2007:37 |
| Sweden - MIG 2008:20 |