Poland - Decision of the Refugee Board no RdU-326-1/S/2015 from 14 August 2015 on granting subsidiary protection
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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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The statement that the applicant can relocate within his country of origin is based solely on general information on Ukraine, without paying attention to his personal circumstances and conditions in the places he could be expected to settle in.
In the decision there is no reference to the applicant’s age, occupation, family situation, employment and housing opportunities, as well as his registration and the level of assistance he could benefit from if returned. The burden of proof to show that the personal circumstances of the applicant are not sufficient to counter a refusal of international protection on the basis of the internal protection alternative lies with the State authority.
The main question is whether the applicant can be sure that he will obtain assistance allowing for certain standards of living. The state assistance is significant here, as the applicant has no family or friends in the part of the country of origin under control of Ukrainians.
Facts:
The applicant, national of Ukraine, came to Poland with a visa and applied for asylum. Beforehand he lived in the eastern part of Ukraine. He was a recent university graduate, unemployed. The applicant said he was scared to live in the eastern part of the country of origin because of the war there. The only family he had in Ukraine were his grandparents, who stayed in his home town and he had a close family member in Poland.He tried to move to the western and central part of the country, but felt discriminated there, as he communicates in Russian. The Head of the Office for Foreigners refused to grant him refugee status or subsidiary protection. The applicant lodged an appeal against this decision. The Refugee Board issued a decision on granting him subsidiary protection.
Decision & reasoning:
The Refugee Board agreed with the authority of the first instance that the testimonies of the applicant confirm that he was not persecuted in the country of origin and he could not have a well-founded fear of being persecuted once returned there.
What is worth examination in this case is a risk of serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. According to publicly available information in eastern Ukraine there is an on-going conflict between the Ukrainian army and pro-Russian separatists. Near the last place of inhabitation of the applicant there is constant cross-fire between the two parties. No doubt living in this city exposes the applicant to a threat to his life or health, but granting subsidiary protection is excluded if there is an internal flight alternative.
In the justification of the appealed decision it was stated that the applicant has a possibility to safely travel to a part of the country of origin which is free from fighting. The Refugee Board finds it the only individualized assessment of internal protection. All other statements are of an abstract nature. Questions asked during the personal interview of the applicant were not precise enough and did not allow for an examination of the rationality of internal protection. The statement that the applicant can relocate within his country of origin is based solely on general information on Ukraine, without paying attention to his personal circumstances and conditions in the places he could be expected to settle in. In the decision there is no reference to the applicant’s age, occupation, family situation, employment and housing opportunities, as well as his registration and the level of assistance he could benefit from. The burden of proof that the personal circumstances of the applicant will not stand in the way of the refusal of international protection based on internal protection alternative lies within the authority.
The main question is whether the applicant can be sure that he will obtain assistance allowing for certain (described by the court as normal) standards of living. The state assistance is significant here, as the applicant has no family or friends in the part of the country of origin under the control of Ukrainians. A very laconic assessment of individual circumstances of the applicant and justifying the decision based on general observations of internal protection in Ukraine does not allow for an examination of the internal protection alternative thoroughly.
The information presented by the applicant shows that in Ukraine he cannot rely on assistance he receives in Poland from his family members, so applying the internal protection alternative in this case is not reasonable.
Outcome:
Subsidiary protection granted to the applicant.
Observations/comments:
The decision is worthy of attention since the vast majority of asylum applications submitted by Ukrainian nationals are considered to be negative, principally because of the internal flight alternative.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Poland - Article 15 and 18 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland |
Other sources:
Article 15 and 18 of the Law of 13 June 2003 on granting protection to foreigners in the territory of the Republic of Poland