Case summaries

Subsidiary protection can be granted if on return to their country of origin an applicant would face a real risk of torture, inhuman or degrading treatment or punishment. The question at issue was whether the reasons for such ill-treatment related to Refugee Convention persecution grounds or not. All international protection statuses require an individual threat, which cannot be indirect as the risk assessment is a future oriented examination of the possibility of a threat, along with the applicant’s individual circumstances and the probabilities of risk.

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.

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.

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.  

This case concerned the removal of a Sri Lankan national of Tamil ethnicity to Sri Lanka. The Court held that he belonged to a specific group all of whose members were at risk of ill-treatment and so could not be returned. The Applicant did not need to show that he was more at risk than others in this group. The case concerned a situation of generalized violence in Sri Lanka.

A female applicant from Syria belonging to a minority group was eligible for refugee protection based on the lack of fundamental rights and freedoms for the minority to which she belonged, in addition to her political activities.

The Council of State ruled that in support of an application for subsidiary protection a mere reference to the general situation in the country of origin is in principle insufficient, and that the applicant needs to make a link between that general situation and his/her personal circumstances.