Case summaries

The case considered whether the security situation in central-Iraq, and particularly in Baghdad, met the prerequisites for granting a residence permit on the grounds of subsidiary protection. It was confirmed that the need for international protection must be evaluated not only on points of law but also on points of fact. Both the applicant’s account of prior events in the country of origin, as well as current country of origin information regarding the security situation, must be taken into account in the risk assessment. As such, the evaluation is tied to a particular individual and to a particular time and place.

The applicant’s claim for refugee status was rejected as Convention grounds were not established, however, subsidiary protection was granted in the alternative by the court on the basis of grave human rights violations and the prohibition of torture (Art 3 of the European Convention on Human Rights (ECHR)).

The court accepted the argument that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act)

The group of “Iraqi citizens who cooperate with the coalition forces” in Iraq is not to be characterised as a “social group” within the meaning of the Qualification Directive (confirmation of decision of Administrative Court of Karlsruhe of the 16 April 2010, A 10 K 523/08). It cannot be assumed that any kind of cooperation with the coalition forces is an expression of a certain political conviction or that Islamist terrorist organisations would have an understanding of this kind of cooperation.

The Administrative Court held that the results of language analysis alone, contradicting the applicant’s description of events, cannot be seen as sufficient proof of the applicant’s place of residence if no other facts have been presented to support the result of the language analysis.

Even if it is assumed that an internal armed conflict is taking place, a serious individual risk can only be established if the degree of indiscriminate violence which is characteristic of the conflict has reached such a high level that any civilian is at risk of a serious individual threat simply by his or her presence in the region.

The suicide attacks and bombings typical of Iraq and also of the hometown of the applicants can be classified as acts of indiscriminate violence. However, a density of danger as it is necessary for the assumption of a serious and individual risk cannot be established. Nor do the applicants possess individual characteristics which result in an increased risk for them when compared to other members of the civilian population.

The applicant is not entitled to protection from deportation within the meaning of Section 60 (7) (2) of the Residence Act / Art 15 (c) of the Qualification Directive as the levels of indiscriminate violence in his home area are not characterised by a sufficient "density of danger".

The CALL ruled that the Qualification Directive, with reference to the grounds for revocation, clearly shows a difference between the various types of protection and that there is no indication that the Belgian legislator wished to deviate from this. Subsidiary protection can be revoked on the basis of a “serious crime” committed after protection was granted.

In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.

When assessing the availibility of an internal protection alternative the possibilities for the applicant to live together with his/her family in the country of origin should be taken into account. This applies even if the applicant’s family are not seeking asylum in Sweden. However, first a need for international protection needs to be established.