Case summaries

In a challenge to a decision to refuse subsidiary protection and humanitarian leave to remain, the Court considered the obligation on the decision maker to consider relevant documentation, the obligation to give reasons for a decision to dismiss such evidence, reliance by the Minister on credibility findings by the RAT in denying the earlier application for refugee status and whether an Applicant is required to challenge the RAT findings in a subsequent application for subsidiary protection. The Court found that the Minister had failed to weigh the apparently corroborative documentation against the marginal findings of lack of credibility by the RAT or to give reasons for dismissing or rejecting such documentation.

This cases concerns the interpretation of Article 2(c) and Article 9(1)(a) of the Qualification Directive in a case where the two Applicants are Pakistani nationals who are members of the Ahmadi religious community and fear persecution there on the basis of religion.

It is expected and necessary that persons fearing persecution should fully and continuously cooperate with the authorities handling their case.

Since the life, basic safety and livelihood chances of people are involved, based on the above described amount and nature of danger (in such cases naturally the actual danger need not and cannot be undoubtedly proved) the very likely occurrence of persecution, harm or other significant detriment cannot be risked.

In relation to the internal protection alternative, the Applicant must have family or kinship ties, or his/her basic livelihood and accommodation must be provided by other means in a certain part of the country.

The examination by the Dutch judge in second and subsequent asylum procedures was not in breach of Article 32 of the Asylum Procedures Directive, Article 13 of the ECHR, or Articles 18 and 19 of the CFREU.

Establishing  that an asylum seeker is unconvincing is a matter of assessing the evidence, which can only take place when reaching a decision. The competent authority for international protection is not obliged to notify the Applicant in advance regarding its assessment of the evidence. 

Paragraph 9 of Article 23 of the International Protection Act stipulates that when assessing an application for international protection the Ministry of the Interior (MI) needs to take into account the specific information on the country of origin that is connected exclusively to the matter at hand. This can also include the manner of enforcing laws and other regulations in the country of origin. The fact that the Applicant participated in the protests is indisputable, thus the MI should have obtained specific information on whether Iranian legislation defines participation in protests and getting involved in a confrontation with security forces as an act that could lead to persecution.  

The authorities of first and second instance—the Head of the Office for Foreigners and the Polish Council for Refugees—refused to grant refugee status or other forms of protection to an applicant from Uganda who had applied for refugee status because of his sexual orientation. They made the same decisions but on fundamentally different grounds and factual findings. The  first instance authority found that the applicant was homosexual but that the information about the country of origin indicated that his fear was not well-founded. The  second instance authority found that homosexuals are at risk of persecution in Uganda but that the applicant was not homosexual, and the opinion of a doctor who is a sexologist did not prove sexual orientation. Instead, this needed to be proved based on the testimony of the applicant, which is then verified in the context of his general credibility during the proceedings.

The actual risk of inhuman treatment or punishment by the Taliban because of desertion from one of their forced recruitment training camps can justify a deportation ban according to clause 60 (2) of the Residence Act (Article 15(b) of the Qualification Directive) in the case of Afghanistan.
Targeted criminal violence is defined in Article 15 (b) of the Qualification Directive (clause 60 (2) of the Residence Act) but not in Article 15 (c) of the Qualification Directive (clause 60 (7) p. 2 of the Residence Act), because in this context there is no specific risk of an internal armed conflict, i.e. “indiscriminate violence”.  

If a subsequent application for international protection is submitted, the administrative authority must evaluate whether the applicant has presented any new facts that, through no fault of the applicant, had not been the subject of examination in the previous proceeding. Otherwise, the application is inadmissible and the proceedings must be stopped.

When the asylum claim of an applicant has not been individually assessed, the National Court of Asylum has to cancel the asylum refusal decision and the asylum claim has to be reassessed by the OFPRA.

When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of  evidence (in relation to subsidiary protection).

The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.   

Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..

The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.

The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.