Sweden – Migration Court of Appeal, 21 April 2011, UM 7851-10
Keywords:
| 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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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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. |
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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:
Facts:
The applicant applied for asylum in Sweden in September 2009. The applicant was born and raised in the Kismayo area in Somalia and gave birth to an illegitimate child in 2002. The father of the child left the applicant when he learned she was pregnant. The applicant's parents are divorced and her father had two sons from another marriage. The family belongs to the Ashraf clan, which is known for its great piety. When the applicant's half-brother found out that the applicant had given birth to an illegitimate child, he tried to kill her with a knife and stabbed her in the neck and leg. With the help of neighbours, the applicant was taken to her aunt in Bureo (Somaliland). Her aunt and uncle tried to get their male relatives to refrain from punishing the applicant, but they refused. Several male relatives believed that the applicant had committed a crime against Sharia law, that she brought shame to the family and that she should be stoned to death. The applicant left Bureo shortly after and settled in a village outside Kismayo. In 2009, she was told that relatives were looking for her with the help of Al Shabaab in the Kismayo area. In order to force her aunt in Kismayo to tell them where the applicant was, the aunt's daughter was arrested. Her aunt then helped the applicant to leave the country.
Decision & reasoning:
Before the Migration Court of Appeal, the applicant claimed she was credible because she had consistently given the same account and she had stuck to the facts that the Migration Board and the Migration Court had called into question. The fact that her male relatives did not look for her in Kismayo until 2009 was because she had kept herself hidden, and that it was only in 2009 that her step brothers got help from Al Shabaab. The applicant believed that there was no reasonable internal protection alternative for her, since even her aunt and her family were victims of retaliation by Al Shabaab.
During the oral hearing, the applicant stated that her daughter was also at risk of being killed for reasons of 'honour'. She clarified that it was not possible for her to obtain first-hand information because it would have threatened her life to meet the relatives who were looking for her. The Migration Board said that the applicant's clan affiliation and residence had not been established and that her asylum claim should therefore be assessed against the whole of Somalia. The Migration Board argued that the applicant could stay in Somaliland since the situation there was deemed to be stable and there were no severe conflicts.
The Migration Court of Appeal believed that the applicant had shown that her background, clan affiliation and residence were plausible. The risk assessment was therefore made against the Kismayo area, where the Migration Court of Appeal in an earlier ruling had held that internal armed conflict prevailed. For this reason the applicant should therefore be considered as qualifying for subsidiary protection, providing she was unable to find internal protection elsewhere in the country.
The Migration Court of Appeal believed that the applicant's account had essentially been consistent and unchanged throughout the proceedings. The applicant's account at the hearing gave the impression of being genuine. The Migration Court therefore accepted the applicant's account as credible and likely.
Since the applicant had shown it probable that she would on return to Kismayo be vulnerable to abuse from male relatives, in collaboration with Al Shabaab, because as a woman had not followed the norms that prevailed, and since the applicant's possibilities of obtaining effective protection in this area were virtually nonexistent, she had the right to protection as a refugee on the basis of her gender. However, this presumed that she could not obtain protection in any other part of Somalia.
Outcome:
The Migration Court of Appeal quashed the Migration Court’s ruling and granted the applicant permanent residence and refugee status.
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 3 |
Cited Cases:
| Cited Cases |
| Sweden - Migration Court of Appeal, 14 January 2009, UM 4118-07 |
| Sweden - MIG 2007:9 |
| Sweden - MIG 2007:12 |
| Sweden - MIG 2008:39 |
| Sweden - MIG 2011:4 |
Other sources:
UNHCR Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees.