Sweden - Migration Court of Appeal, 23 May 2008, UM 1802-07
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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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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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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. |
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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:
A female applicant from Syria belonging to a minority group was eligible for refugee protection based on the lack of fundamental rights and freedoms for the minority to which she belonged, in addition to her political activities.
Facts:
The applicant claimed she was in need of protection based on the discrimination (amounting to persecution) she was subjected to as a member of the minority group Maktoumeen in Syria. The Maktoumeen are denied a number of fundamental rights in their country of origin. She had also been imprisoned and was tortured following her participation in a political demonstration and risked persecution on political grounds on return.
The Migration Board denied the application on 2 December 2005. The Stockholm Migration Court came to the same conclusion on June 11 2007. Neither the first nor second instance decision-makers found that the applicant fulfilled the requirements of the refugee definition. The judgment of the Migration Court was appealed to the Migration Court of Appeal where the applicant emphasised the difficult situation for Maktoumeen in Syria. The Migration Board approved the appeal as a whole with reference to cumulative acts of discrimination and the situation for this particular minority in Syria.
Decision & reasoning:
The Migration Court of Appeal stated, contrary to the view of the Migration Board but consistent with the Migration Court judgment, that the fact that the applicant was part of a discriminated minority was not in itself enough to grant her protection on refugee grounds. The Migration Court of Appeal underlined that an individual assessment had to take place.
The Migration Court of Appeal found that the particularly vulnerable situation of the applicant as a Maktoumeen, combined with the consequences of the applicant’s political activities, as well as her statements regarding her limited possibilities of return to Syria, led to the conclusion that she was to be granted protection as a refugee under Chapter 4, Section 1 of the Aliens Act.
Outcome:
The Migration Court of Appeal reversed the decision of the Migration Board and the Migration Court judgment and granted the applicant refugee status.
Observations/comments:
Obiter Comments: One of the judges of the Migration Court of Appeal wrote a dissenting opinion stating that she thought that there were facts in the case that should have been further investigated. She also found the applicant’s account of events to be vague and lacking in detail and therefore not credible.
In the present judgment, the Migration Board completely changed its position when the case reached the Migration Court of Appeal. There it considered the discrimination the applicant has be subject to as cumulatively amounting to such human rights violations that fall within the scope of the refugee definition. The Migration Court of Appeal does not accept this line of reasoning. Instead, it emphasises the importance of an individual assessment of asylum claims and avoids the recognition of legitimate asylum claims from a particular group.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1 |