Case summaries
In this case the Court of Appeal considered the interpretation of Art 15 (c) of the Qualification Directive applying the decision of the CJEU in Elgafaji (C-465/07; 17 February, 2009).
Article 15(c) of the Qualification Directive only offers protection in exceptional circumstances where there is a high level of indiscriminate violence.
As soon as one persecution ground (in this case religion) exists and the other conditions for qualifying for refugee status are fulfilled, refugee status must be recognised rather than subsidiary protection, including in a context of generalised violence.
This case concerned the assessment of "group" persecution against Arab Sunnites in Iraq. In order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the entire group of persons affected by that persecution ( "density of persecution"). Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included.
The Court replaced the decision of the OIN to allow the Applicant to remain on non-refoulement grounds (i.e. tolerated status), with a decision to grant the Applicant subsidiary protection status on the grounds that he would be at risk of serious harm on return to his home country (indiscriminate violence).
The case concerned an application for international protection by an Iraqi national. The application was dismissed on the grounds of a failure to establish that his life or person was threatened by reason of indiscriminate violence. The applicant failed to demonstrate individual risk.
This preliminary ruling concerned the interpretation and application of Article 15(c) of the Qualification Directive and the protection offered under this provision.
The applicant was not granted refugee status or protection against deportation in accordance with Section 60 (2) through (7) of the Residence Act. The court found:
- A single woman with a “Western” lifestyle is not at risk of gender-based political persecution by non-State actors in Iraq.
- The risk of the applicant becoming a victim of an honour killing (or respectively a weaker, non-life threatening disciplinary measure by her clan) because of her moral conduct, disapproved by her clan, constitutes an increased individual risk. However, this risk is not the result of arbitrary violence, but constitutes a typical general risk.
The conditions for asylum seekers in Greece were at the time of the decision not of such a character that it would prevent transferring asylum seekers according to the Dublin Regulation.