Case summaries

The Respondent erred if, in a procedure on the extension of subsidiary protection, it failed to examine the threats to safety for repariated Afghan nationals. The Respondent,within the context of finding the facts, had completely failed to examine evidence of the existence of serious harm within the meaning of Section 2(f)(2) of the Asylum Act (torture or inhuman or degrading treatment or punishment), and thus failed to address the question of whether, in the event of the Appellant returning (as a person who had left Afghanistan) to his country of origin, he would not also be at risk of this form of serious harm. The Respondent took no evidence in respect of this, which is contrary to the provisions of Section13a of the Asylum Act. Moreover, its actions were thus contrary to its own established practice, whereby, in (standard) proceedings on applications for international protection, it routinely ascertains the behaviour of state authorities in relation to unsuccessful asylum applicants or other groups of repatriated persons returning to their country of origin. 

In order for subsidiary protection to be provided, the law requires not just a fear but a well-founded fear. This means that a fear of persecution must be real and not fictional. If the genuine nature of an appellant’s fear were to be accepted on the basis of an outline provided to the Respondent in proceedings to extend subsidiary protection, it would lead to a situation where almost all nationals of countries in which any kind of conflict was taking place - even a local one not directly affecting most of the population - would have to be regarded, without further grounds for acceptance, as persons in respect of whom there were serious grounds for believing that they would be exposed to a real risk of serious harm in the event of returning to the country of origin.

Dismissal of the Appellant’s claim that the findings of fact were incorrect beause the Respondent had failed to examine relevant grounds for assessing the  existence of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, and specifically the risk of execution.

As the Appellant did not claim, either during the administrative or the judicial proceedings (before the Regional Court), that criminal proeedings were under way against him in his country of origin, or that he faced the threat of execution, torture, inhuman or degrading treatment, the Respondent could not be criticised for approaching the hearing of evidence in relation to his claims concerning the bad security situation in his country of origin, and to that end had focused on assessing the security situation in the country of origin and had not dealt with the risk of execution in the country of origin.

A foreigner shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required. The relevant provision refers to two separate reasons that justify revoking subsidiary protection. The first is that the circumstances which led to the granting of such protection have ceased to exist. The second is that those circumstances have changed, although the change of circumstances must be of such a significant and non-temporary nature that the foreigner no longer faces a real risk of serious harm.

Subsidiary protection cannot establish a right that is comparable to, for instance, the right to obtain permission for temporary stay or indefinite leave to remain.

The Migration Office of the Ministry of Interior of the Slovak Republic may not revoke subsidiary protection in a procedure on extension of subsidiary protection initiated under Section 20(3) of the Asylum Act on the basis of an application to extend protection.

Under Section 20(3) of the Asylum Act, the procedure may result only in a decision to extend or not to extend protection.

The procedure of the Court did not include decisive evidence for an assessment of whether, as a ground for revoking protection status, the complainant represented a danger to the security of the Slovak Republic, thereby infringing the complainant’s right to respond to all of the evidence, under Article 48(2) of the Constitution of the Slovak Republic and under Article 38(2) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 13(4) of the Constitution of the Slovak Republic and Article 4(4) of the Charter of Fundamental Rights and Freedoms. The basis on which the competent authorities reach a decision must be clear from the administrative authority’s file and from the court file, even where no explicit reason is provided in the statement of reasons for their decision.

As a result of six convictions owing to trivial offences against property, subsidiary protection was withdrawn from the Applicant, as he would represent a danger to the general public. The Constitutional Court revoked this decision as unconstitutional: the Asylum Court had not interpreted the corresponding national stipulation in accordance with the Directives as the crimes committed were not of the seriousness required in Art 17 Qualification Directive.

When establishing the necessary “density of danger” in an internal armed conflict within the meaning of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive, it is not sufficient to quantitatively determine the number of victims in the conflict. It is necessary to carry out an “evaluating overview” of the situation, which takes into account the situation of the health system. However, this issue was not decisive in the present case, as the applicant would only face a low risk of being seriously harmed.

The standards of proof for the assessment of possible future persecution are identical for both the refugee status determination procedure and for the revocation procedure (change of legal opinion, following Federal Administrative Court, decisions of 1 June 2011,10 B 10.10 and 10 C 25.10). The question of whether a change of circumstances in a country of origin is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded can only be answered after an individual assessment.

This case concerned the revocation of asylum and refugee status in the case of a former official of the Kurdistan Workers' Party (PKK) (following the European Court of Justice case of Federal Republic of Germany v B (C-57/09) and D (C-101/09), 09 November 2010).