Sweden - Migration Court of Appeal, 9 March 2011, UM 3363-10 & 3367-10
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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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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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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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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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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. |
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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:
A young couple (both minors) were eligible for subsidiary protection as they risked being the victims of honour-related violence in their country of origin. The Migration Court of Appeal concluded that in this particular case, it would be unreasonable to ask the applicants to have sought the protection of domestic authorities.
Facts:
The applicants (both Kurds from northern Iraq) stated that they were threatened by their families who did not accept their relationship. They had not been allowed to marry. Instead, the girl had been promised to a cousin. Both their lives had been threatened by the girl’s family and the couple had lived in hiding for a year to avoid the forced marriage taking place. The applicants had not asked the authorities for help as they did not think they would receive any since the girl’s father is a state official and a clan leader.
The Migration Board rejected their applications on 29 October 2009, mainly due to lack of credibility. On March 25 2010 the Gothenburg Migration Court reversed the decision and granted the applicants subsidiary protection (Aliens Act Chapter 4, Section 2, item 1, transposing in part Article 15 (a) and (b) of the Qualification Directive and Article 3 of the ECHR). The Chair of the Court (the law judge) wrote a dissenting opinion, stating that the applicants could not be granted protection due to lack of credibility and that they had not shown a sufficient need for protection. The Migration Board appealed the judgment to the Migration Court of Appeal, claiming mainly that adequate facts supporting the claim that the authorities in the region could not offer satisfactory protection against honour-related violence had not been presented in the case. The applicants argued that such protection was not available.
Decision & reasoning:
The Migration Court of Appeal held an oral hearing on 13 January 2011.
In its judgment the Court began with an account of the meaning of Article 7 of the Qualification Directive. It then continued with a comprehensive account of COI regarding honour-related violence in northern Iraq and the protection available from such violence.
The Migration Court of Appeal, without going into detail, stated that the applicants were not eligible for refugee status – refugee status based on gender-related persecution (Aliens Act Chapter 4 Section 1, transposing Article 9 of the Qualification Directive) was not discussed. The Court then discussed the credibility of the applicants and concluded that their accounts, with certain exceptions, were credible. The applicants should thus be considered to have shown that they had substantial grounds to believe that they, would they return to their country of origin, would face a real risk of being subjected to honour-related violence or other such violations.
The question was then if local authorities in the country of origin could offer the applicants effective protection. The Migration Court of Appeal recognised that COI provides evidence that such protection certainly is available (in particular for women) but that it is a delicate situation. It is therefore, the Court concluded, not possible to say in general that the protection offered is effective. An individual assessment must always take place. In the present case the Court thus found that, taking into account the girl’s father’s position in society, the limited knowledge available concerning the protection available for young girls against their parents, the limited access to protection for men subject to honour-related violence, as well as the fact that both applicants were minors, it was not reasonable to require the applicants to have sought protection from the local authorities. Internal protection was not considered applicable.
Therefore, both applicants were granted subsidiary protection under Chapter 4, Section 2 item 1 (transposing in part Art 15 (b) of the Qualification Directive).
Outcome:
The Migration Court of Appeal denied the appeal and granted the applicants subsidiary protection status.
Observations/comments:
Obiter Comments: One of the judges was in disagreement. In her dissenting opinion she argued that neither had the applicants shown enough evidence to support their claims for protection nor were they to be seen as credible.
It can be noted that gender-related persecution is not discussed at all in the judgment, even though honour-related violence would be relevant to the assessment of need for protection.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 1 |
| Sweden - Utlänningslagen (Aliens Act) (2005:716) - Chapter 4 Section 2 |
Cited Cases:
| Cited Cases |
| Sweden - Migration Court of Appeal, 14 January 2009, UM 4118-07 |
| Sweden - MIG 2007:9 |
| Sweden - MIG 2007:12 |