Case summaries

The case concerned a complaint by two Somali nationals that they risked being ill-treated or killed if returned to Mogadishu from the UK.

Appeal against the General Secretary of the Ministry of Public Order's negative decision no 95/52986 of 28.4.2006 on a claim for asylum before the Appeal Committees formed pursuant to Articles 26 & 32 of Presidential Decree 114/2010 and the Minister of Citizen Protection's decision 5401/3-505533 of 7.11.2011 (385/8-11-2011 FEK YODD) pursuant to which the present Committee was formed.

This case involved a fear of persecution because of religious beliefs (atheism) as well as because of membership of a particular social group (personality shaped in a non-Islamic society / westernisation). In particular, the Committee ruled that if the Applicant were to return to Afghanistan now or in the near future, because of his atheism and the consequent non-conformity with the Islamic way of life of the society into which he would need to integrate, in conjunction with the fact that his personality has been shaped in a non-Islamic society with customs and a way of life totally different from those of Muslims, he would be reasonably likely to suffer aggressive social attitudes, threats and social exclusion which, taken cumulatively, could amount to persecution. Besides, should he return to a small rural community in Afghanistan – given the Applicant's particular personality and how it had been shaped – it is very likely that he would not be able to conceal his religious beliefs (atheism) and thus there was a reasonable chance that he would be at risk of criminal prosecution because of his atheism and his 'apostasy' from Islam (prosecution which is reasonably likely to lead to imprisonment or execution). This, however, would constitute a direct and severe violation of his fundamental right to religious freedom, especially in the context of the specific social, religious and political unrest and the absence of legal guarantees in the Applicant's country of origin.

It was held that even if he were not criminally prosecuted, the Applicant would, in any case, be at risk of suffering harm from non-state actors in the form of persecution; and that the Afghan State, police and other authorities were incapable of providing adequate and effective protection, mainly because of the lack of organisation and the corruption which prevails at all levels.

This case concerned the meaning of the term “serious harm” in the Qualification Directive (as transposed into Irish law). The Irish state refused to grant the applicant subsidiary protection on the basis that the term imputes the absence of State protection, if the fear of harm is from non-state actors. The applicant argued that this was incorrect.

Refugee status was granted to a Kosovar family of Roma origin based on their ethnicity being recognised as a particular social group. The court found that they faced a risk of persecution and that state protection was either unavailable or ineffective.

An applicant from Somalia was eligible for refugee status. The court found:

1. There was sufficient probability that the applicant’s life and freedom, in case of return to Somalia, were at risk due to his membership of a particular social group.
2. Clan membership constitutes a particular social group.
3. Protection against persecution is not provided by the State, by parties or by other organisations in Somalia.
4. There is no internal protection in Somalia.

An applicant from Guinea was recognised as a refugee. The court found that because of his homosexuality he faced a threat of persecution from family members. The State was unwilling or unable to provide protection.

Refugee status was granted to the applicants (parents) because of their advocacy in Afghanistan for democracy, separation of state and religion, equality between men and women, and their membership of and support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Refugee status was granted to their children because of their membership of a particular social group of “family”.

Threats by political opponents are to be considered as imminent persecution by non-State actors according to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive. The Afghan State is unwilling and unable to grant protection against such persecution by non-State actors (Art 7 of the Qualification Directive).

The applicant was recognised as a refugee because of a threat of forced marriage in Afghanistan. The court found that rights violations resulting from forced marriage, including the use of physical and psychological violence, constitute severe violations of basic human rights according to Art. 9 (1) (b) of the Qualification Directive. The applicant belonged to the particular social group of "unmarried women from families whose traditional self-image demands a forced marriage." The Afghan State is neither willing nor able to protect women against persecution in case of forced marriage. Internal protection was not available to the applicant.

The Council for Alien Law Litigation (CALL) held that Art 48/5, §3 of the Belgian Aliens Law, which refers to the principles of internal protection alternative and protection within a country of origin, is in principle applicable in cases where the threat comes from a non-state agent. In a case where the threat of persecution comes from a state agent, the decision-maker should explain why it believes that this provision is applicable nonetheless.