Case summaries

1. The denial of citizenship may represent a severe violation of basic human rights according to Art. 9.1 (a) of the Qualification Directive.
2. In assessing the severity of the violation of rights caused by the denial of citizenship, under Art. 4.3 of the Qualification Directive, the individual situation and personal circumstances of the person concerned have to be taken into account.
3. A person is stateless according to Section 3 (1) of the Asylum Procedure Act, if no state considers him/her as a national under its own law, i.e. a de jure stateless person. For de-facto stateless persons, therefore, a threat of persecution has to be established with reference to the state of their de jure nationality.
4. The habitual residence of a stateless person under Section 3 (1) of the Asylum Procedure Act does not need to be lawful. It is sufficient if the focus of the stateless person’s life is in the country, and therefore the stateless person did not merely spend a short time there, and the competent authorities did not initiate measures to terminate his/her residence.

A permit to stay, granted on humanitarian grounds to a foreigner whose application for asylum has been rejected until such time as it becomes feasible for him to go abroad, is of a temporary nature. It is possible to extend the validity of such a permit if there are exceptional circumstances relating to the prevailing situation in the foreigner's country of origin and/or relating to his personal circumstances. When an application to extend a permit to stay is submitted, the Administration should examine any exceptional grounds that may have been put forward.

Unlike with subsidiary protection, it is necessary for there to be a causal link between persecution and the grounds for persecution when assessing the conditions for granting asylum. The fact that a conflict between LTTE and governmental armed units affected Tamil civilians does not mean nationality qualifies as a ground of persecution. 

This concerned whether the Office of the Refugee Applications Commissioner (ORAC) were required to make an assessment of subsidiary protection, and whether ORAC were obliged to examine country of origin information in every case. The court found that ORAC were not required to make a subsidiary protection assessment. The Court held that ORAC were not obliged to examine country of origin information in every case.

State protection should be assessed in the applicant’s home area, in the absence of an internal relocation alternative.  The Tribunal erred in finding that the fact that the applicant had been raped at her home on 3 separate occasions over a short period by government soldiers had the same effect on assessing future risk as if she had been raped by civilians. The soldiers appeared to act with impunity whereas that would not necessarily be the case for civilians. In assessing future risk past experience was central, as reflected in Art 4(4) of the Qualification Directive and by common sense. 

A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:

1. State protection doesn’t exist against ‘honour killings’ in Lebanon.
2. Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
3. Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).

The applicant, a lesbian from Iran, was recognised as a refugee. The court found:

1. It is unreasonable for homosexuals to refrain from sexual activities in order to avoid persecution.

2. Although there is no systematic persecution of homosexuals in Iran, there is a considerable risk of detection and persecution.

Country of origin information must be up-to-date and balanced. A report of the European Commission evaluating Turkey as potential member of the EU is political and biased, and should only be used as a supporting document.

The Court of Appeal considered a piece of legislation that required judges and decision-makers to “take into account, as damaging” to an asylum application’s credibility, certain specified behaviour, including the failure to claim asylum in a safe third country. The Court held that the relevant legislation must be interpreted in a way which is consistent with constitutional principles and which allowed the judiciary to make a global assessment of credibility in the individual case. If the legislation was interpreted as a direction it would risk distorting the fact-finding exercise conducted by the judiciary.

The concept of internal protection only applies if the asylum-seeker is able to reach the relevant region in a reasonable manner. In the light of Art 8 of the Qualification Directive an asylum-seeker can only be reasonably expected to stay in another part of his country of origin if he does not face risks in this region. The general situation in the region of internal protection and the applicant’s personal circumstances has to be taken into account. It is irrelevant for the granting of refugee status whether such risks likewise exist in the region of origin.