Case summaries

Refugee status was granted to the applicants (parents) because of their advocacy in Afghanistan for democracy, separation of state and religion, equality between men and women, and their membership of and support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Refugee status was granted to their children because of their membership of a particular social group of “family”.

Threats by political opponents are to be considered as imminent persecution by non-State actors according to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive. The Afghan State is unwilling and unable to grant protection against such persecution by non-State actors (Art 7 of the Qualification Directive).

There was no serious reason, within the meaning of Article 4 of the Qualification Directive, to rule out with sufficient confidence that the risk of persecution, from which it is established that the applicant suffered, would not be repeated.

The applicant was recognised as a refugee because of a threat of forced marriage in Afghanistan. The court found that rights violations resulting from forced marriage, including the use of physical and psychological violence, constitute severe violations of basic human rights according to Art. 9 (1) (b) of the Qualification Directive. The applicant belonged to the particular social group of "unmarried women from families whose traditional self-image demands a forced marriage." The Afghan State is neither willing nor able to protect women against persecution in case of forced marriage. Internal protection was not available to the applicant.

The Council for Alien Law Litigation (CALL) held that Art 48/5, §3 of the Belgian Aliens Law, which refers to the principles of internal protection alternative and protection within a country of origin, is in principle applicable in cases where the threat comes from a non-state agent. In a case where the threat of persecution comes from a state agent, the decision-maker should explain why it believes that this provision is applicable nonetheless.

When presented with a detailed story that is logical, free from internal contradictions and accords with the social and political situation in the country of origin as described in international reports, the statements of the Applicant have to be deemed to be credible and therefore international protection has to be granted.

The Respondent concluded that the Appellant represents a danger to the security of the Slovak Republic, although there was no information in the administrative file on the basis of which it might reach such a conclusion (valid premise). It is thus a clear case of the findings of fact (that the Appellant represents a danger to the security of the Slovak Republic) being in conflict with the contents of the file. Such a situation constitutes a ground for setting aside a contested decision under the provisions of Section 250j(2) of the Civil Procedure Code.

If the Respondent had information on the basis of which it reached a valid premise, according to which the Appellant represents a danger to the security of the Slovak Republic, this must exist in a form (usually written) which enables the parties to the proceedings, their representatives or the reviewing authority to acquaint themselves with the contents thereof. If, however, the Respondent, despite the existence of this information, failed to place it in the administrative file, the file must be regarded as incomplete, which constitutes a ground for setting aside a contested decision under the provisions of Section 250j(3) of the Civil Procedure Code.

To not give the applicant some additional time to submit documents that the authorities are already aware of which may be relevant for the asylum application is a violation of Art 4.1 of the Qualification Directive.

The High Court refused leave to apply for judicial review of a deportation order on the grounds that the decision of the Minister for Justice was reasonable.

Applying Art 4.4 of the Qualification Directive, the Council for Alien Law Litigation (CALL) held that the mere finding that persecution has ceased in the country of origin, without showing that there are no good reasons to consider that such persecution will not be repeated, is insufficient to reject an application for asylum.