Case summaries

An unaccompanied minor from Mongolia was granted a residence permit on the gounds of “particularly distressing circumstances”. The Court held that the applicant would be in a very fragile and vulnerable position if returned as she was a minor without a family or a social network, she suffered from psychological problems and would be forced to live in an orphanage. The Court noted that child labour, child abuse and the sexual exploitation of children are problems in Mongolia and that it is a source and transit country for trafficking.

Insofaras the Federal Asylum Agency did not apply an age-appropriate standard when assessing the credibility of the minor Applicant and did not comply with the particular obligation to provide instruction and the duty of care applicable in the case of a minor, the authority committed a gross procedural error.

A young couple (both minors) were eligible for subsidiary protection as they risked being the victims of honour-related violence in their country of origin. The Migration Court of Appeal concluded that in this particular case, it would be unreasonable to ask the applicants to have sought the protection of domestic authorities.

Given the situation of particular vulnerability and constraint of the applicant, a former child soldier from the DRC, there is no reason to apply any of the exclusion clauses of Article 1F of the 1951 Refugee Convention to him.

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).

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

This case concerned the treatment of evidence from unaccompanied minors. The applicant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis of a fear of persecution both by the Taliban and the Afghan government. The Refugee Appeals Tribunal refused his refugee appeal on the grounds that the applicant was not credible and that his claim was not objectively well-founded. The Court found that the Tribunal Member had engaged in impermissible speculation and conjecture in relation to the applicant’s prospect of State protection in Afghanistan, that the Tribunal Member had imputed expectations to the applicant without any consideration of the applicant’s level of maturity at the time, and that the Tribunal Member had failed to consider whether the applicant’s fears in relation to the Taliban were realistic having regard to his age, maturity and the particular circumstances in Northern Afghanistan.

If a subsequent asylum application is based on circumstances which the applicant has created by his own decision, refugee status shall not be granted if the applicant was able to develop his own political conviction at the time of the (termination of the) preceding asylum procedure. This can be assumed to be the case at the age of 16, or at the age of 18 at the latest.

This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established.  When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity. 

Application for annulment of a decision by the Minister of Public Order 

The case addressed the absence of procedural guarantees in the context of appointing a Commissioner and assessing the applicant’s level of maturity with regard to the need for special treatment of an unaccompanied minor.

The lack of personal persecution of an alien applicant does not preclude the recognition of refugee status if it is shown that there is an objective and well-founded fear of individual persecution in the applicant's country.

The Court found that the decision of the Minister for Public Order was improperly reasoned in that itfailed to comply with the Administration's obligations to take into account the particular circumstances of the case, to consider the merits of the applicant's claims based on objective evidence, to conform with procedural guarantees when assessing applications by unaccompanied minors, and to interpret the applicant's claims within the true intended meaning of the words used. It found that the Administration had failed to investigate the applicant's risk of persecution on the grounds of his racial origins and membership of (participation in) a particular social group (young male Hazara) in view of the prevailing conditions in his country.  The contested decision was also defective because of a failure to examine the existence of conditions for protection on humanitarian grounds.