Case summaries

This case concerns the interpretation of Article 11 of the Qualification Directive when refugee status is deemed to have ceased to exist. The Court found this is when there has been change of circumstances which is significant and non-temporary and when there is no well-founded fear or other reason to risk being persecuted. States in assessing changes in circumstances must verify that the actors of protection have taken reasonable steps to prevent the persecution and that the person concerned has access to that protection. In making the assessment that there is no further risk the standard of probability used is the same that applied when refugee status was granted.

This case concerned a decision of the Office of the Refugee Applications Commissioner (ORAC) to refuse to recommend refugee status on grounds of credibility. The refusal contained a finding which allowed an appeal on the papers only. The applicant sought to have this decision set aside by the High Court on the basis that an appeal without an oral hearing was insufficient as the report depended on a finding of a lack of credibility and thus required oral testimony to rebut this.

1. Refugee status was recognised because of a risk of persecution in case of return to Vietnam due to “exposed” political activities in exile.
2. Recognition as a refugee was not excluded by Section 28 (2) of the Asylum Procedure Act. Contrary to the case law of the Federal Administrative Court, political activities in exile do not constitute “circumstances which the applicant has created by his own decision”  within the meaning of Art. 5.3 of the Qualification Directive , but fall under Art. 5.2. Therefore, Member States have no competence to regulate the meaning of such "activities" by applying Art 5.3. This is also demonstrated in the differentiation in Art. 4.3 (c) and (d). Art. 5 (2) of the Qualification Directive which essentially corresponds with the new Section 28 (1a) of the Asylum Procedure Act, although the term "activities" has not been adopted in the latter provision.

If an applicant raises circumstances that could present a potential breach of Art 3 ECHR it is impossible to reject the application as manifestly unfounded. The case must be considered on its merits and the deciding authority needs to have accurate COI.

The Supreme Administrative Court (SAC) quashed a decision of the Finnish Immigration Service which, applying the Dublin II Regulation, did not examine the application for international protection and decided to return the applicant to Greece. The SAC returned the case to the Immigration Service for a new examination based on new evidence that was presented regarding the applicant’s health.

This case concerned the interpretation of Article 4.3 of the Qualification Directive and the nature of the assessment of the facts and circumstances of a refugee application that should take place. The Court rejected the argument that a failure by a first instance decision-maker to consider each of the mandatory matters set out in Article 4.3 rendered that decision unlawful such that it must be quashed, rather than allowing for any such defect to be cured by an appeal body. The obligation imposed by the Directive is satisfied when any errors or misjudgements at the first instance stage, including deficiencies in complying with Article 4.3 are remedied by an appeal stage.

The applicant complained that the refusal to recommend refugee status at first instance contained errors such that on appeal the “core claim” was effectively being heard for the first time, and further the subsidiary protection assessment was not in compliance with statutory requirements which gave effect to the Qualification Directive; and that he should have had a chance to comment on country of origin information used in the assessment of his application.

The Office of Immigration and Nationality (OIN) found the applicant not credible and therefore did not assess the risk of serious harm. Instead the OIN granted protection against refoulement. The Metropolitan Court ruled that the OIN was obliged to assess conditions for subsidiary protection and serious harm even if the applicant was not found credible.

This case concerned subsequent applications and previous findings. The CALL ruled that, when deciding on a subsequent application, it is not competent to re-judge issues that have been decided in earlier applications. The CALL confirmed that those issues are final, unless evidence is submitted that is of such a nature that it demonstrates in a certain manner that those earlier decisions would have been different had that evidence been submitted at that time. 

The applicant claimed asylum on the grounds of having suffered female genital mutilation (FGM) and being subject to a forced marriage. The Ministry of Interior refused the application and the applicant lodged an appeal before the High National Court who also rejected the appeal (the applicant was granted a residence permit for humanitarian reasons). The applicant filed an appeal to the Supreme Court.