Case summaries
A claim based on past persecution was rejected on the basis that it lacked credibility. A challenge to the decision of the Tribunal was successful on the basis that the decision did not contain any reasoned assessment of the prospective risk of future persecution if returned to Sudan. The High Court in its judgment cautioned against the use of case law as a source of country of origin information.
The Court of Appeal concluded that the Tribunal must make a best interest of the child determination in considering an asylum appeal made by an unaccompanied minor. Further, that although the Secretary of State has a duty to trace the applicant’s family under the Reception Conditions Directive, this duty exists independently of the obligation to appropriately consider an asylum claim. Therefore the Secretary of State’s failure to act on the basis of the duty is not a ground on which an asylum appeal could be allowed.
Rights violations resulting from a forced marriage, including the use of physical and mental violence, constitute severe violations of basic human rights in terms of Art 9.1 (a) of the Qualification Directive.
The Iranian state is neither able nor willing to protect women against persecution by relatives in case of forced marriage.
An Egyptian transgender woman, who first underwent gender reassignment surgery and hormone treatment in Austria, was recognised as a refugee as it was accepted that there were problems with the police, a refusal to issue her a passport using her new personal data and social issues of an intensity relevant to asylum matters.
According to the Qualification Directive, forced marriage, along with domestic violence and issues of faith, can be considered as persecution on a cumulative basis having regard to the situation in the country of origin.
The rationale of the decision in HJ (Iran) (see separate summary in this database) applies to cases concerning political opinion. Consequently an individual cannot be expected to modify their political beliefs or deny their opinion in order to avoid persecution. The situation in Zimbabwe was exceptional. At that time, the country guidance held that those who were unable to demonstrate their loyalty to the regime were at risk of persecution. Thus, those with no political beliefs could not be required to profess their loyalty to the regime to avoid persecution and were entitled to refugee status.
The applicant in this case claimed to fear persecution in Nigeria on account of his sexuality. A decision to affirm a deportation order against him was quashed on the basis that insufficient assessment was given to whether the applicant’s human rights would be infringed by the behaviour required of him in order to avoid persecution. The thrust of the refugee and subsidiary protection decisions in the case, and of the deportation decision, was that the applicant could hide his homosexuality and not therefore expose himself to persecution, prosecution or serious harm.
In assessing state protection, a judge must look, notwithstanding a general sufficiency of protection in a country, to the individual circumstances of the applicant. In assessing whether an appellant’s individual circumstances give rise to a need for additional protection, account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. When considering whether past persecution is a serious indication of a well founded fear under Article 4(4) of the Qualification Directive, Recital 27 to the Directive indicated that the past ill treatment of family members was also relevant.
The House of Lords confirmed that in addition to establishing a real risk of harm, the applicant would also have to show that their state has failed to provide reasonable protection.