Case summaries
The case concerns the expulsion of a refugee on the grounds of national security, under an order that did not set out reasons and resulted in violations of Art. 8 and Article 1 of Protocol No. 7 of the ECHR.
During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.
There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.
The case concerns judicial proceedings that ended with the granting of guardianship of a child from the Sahrawi refugee camps in Tindouf to a Spanish host family, after a long period of uncertainty and despite her biological mother’s request for her return. The Court found violation of Article 8 in this regard.
This was an appeal against the rejection of an application for asylum before the Appeal Committees formed pursuant to Articles 26 and 32 of Presidential Decree 114/2010; and against the Minister for Citizen Protection's decisions 5401/3-498356 dated 11.2.2011 and 4000/1/67-f dated 18.5.2011. The rejection of the application (and the legal consequences arising from the rejection) was an excusable error, due to the body issuing the decision having adopted misguided practices. The fear of persecution was based on membership of a particular social group. The domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constitutes a type of gender based persecution because those actions are detrimental to human dignity and physical integrity. Similarly, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.
It was held that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender based discrimination) could constitute persecution.
The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.
The importance of preserving family unity is emphasised, taking into consideration the Final Act of the Conference which adopted the 1951 Convention relating to the Status of Refugees and the Preamble to Directive 2004/83/EC.
Greater caution is required when applying an internal protection alternative to families with children than to adults without children. The Kurdish controlled areas of northern Iraq cannot be considered as a relevant and reasonable flight option for a Christian family, as the Migration Board was not able to show that there currently is no requirement for sponsorship, either to enter or to legally establish oneself there.
An internal protection alternative must be relevant and reasonable. Relevant means that the location is accessible to the individual in a practical, safe and legal manner. The individual must also have access to effective protection at the location. That the option should be reasonable means that an individual assessment of the individual's ability to settle in a new location should be made, and of whether he or she has a social network. There ought also to be a realistic possibility for the individual to support himself and be able to live in a way that does not involve unnecessary suffering or hardship.
The expulsion of relatives providing care can breach Art. 8 ECHR, particularly if the foreigner requiring care and who is resident here is not removed from the country himself, but only the relative providing care.
The appellant mother (M) appealed against a Court of Appeal decision upholding a finding by an Asylum and Immigration Tribunal that her two children (aged 12 and 9), who were British citizens, could reasonably be expected to follow her when she was removed to Tanzania.
The Migration Board accepted the applicant and her children were in need of international protection as refugees in relation to Senegal but claimed that they could obtain protection in Nigeria (considered a safe third country). The Migration Court upheld the applicant’s appeal stating that once a case has been examined in substance in relation to a country of origin and protection needs ascertained it is not possible subsequently to refuse protection by referring to a safe third country. Cases concerning safe third countries must be dismissed in accordance with Art 25.2(c) of the Asylum Procedures Directive which is transposed into Swedish law by the Aliens Act (2005:716) Chapter 5 Section 1 (b).
This decision concerns an appeal lodged before the Supreme Court against the decision of the High National Court, confirming the Ministry of Interior’s decision to revoke the refugee status of the appellant and her children. This revocation was issued following the voluntary return of the applicant’s husband to Colombia, his country of origin.
This appeal challenged a negative decision of the Ministry of Interior to refuse family refugee status extension to the applicants whose son was granted refugee status in 2006.