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.

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.

In cases concerning countries which are not democratic and secure decision-makers must not only look to ratified international treaties as evidence of the human rights situation. It is necessary to examine carefully how international obligations and the legal system as a whole are applied in practice.

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.

Subsidiary protection was granted to a Roma of Serbian nationality who originated from Kosovo as the Court considered that he would currently face a risk of treatment contrary to human dignity in case of return to Serbia or to Kosovo.

The General Secretary of the Ministry of Public Order, having had an application for asylum referred back to it, considered whether the submitted evidence was “new and crucial”. If so, an ab initio examination of the application would be ordered. Failure to give notification of an act does not affect its validity, but only the start of the deadline for submitting an application for its annulment. The copy of the Turkish Government Gazette which promulgated the decision regarding withdrawal of the Applicant's nationality, was new and crucial evidence. There was no justification for refusing the request for an ab initio examination of the Applicant's circumstances, nor for rejecting his application to remain in the country on humanitarian grounds.

Since the situation of generalised violence which prevailed in Sri Lanka ended with the military defeat of LTTE combatants in May 2009, the only valid ground for claiming subsidiary protection would be Article L.712-1 b) Ceseda [which transposes Article 15 (b) of the Qualification Directive]. The applicant has to establish an individual risk of persecution or ill-treatment in case of return to his/her country of origin.

This was a decision on an injunction application in the course of judicial review proceedings challenging a subsidiary protection decision and deportation order on the basis of a failure by the Minister to cooperate with the applicant in processing the subsidiary protection application and that the failure to provide a mechanism of appeal against a refusal of subsidiary protection  breaches the principal of equivalence in European Union law in that the procedure under the (Irish) 2006 Regulations is inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum.

The (injunction) application was rejected on the basis that it was only since the requirements of the Procedures Directive, and, in particular, the deeming provision of its Annex 1, became effective in Irish law (in 2007) that the recommendation of the Commissioner fell to be considered as the first instance determination by a “determining authority” with an appeal to the Refugee Appeals Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it is only because of the manner in which the State has adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive for asylum (refugee) applications pursuant to Article 3.1. Furthermore, without a unified system for both applications the minimum procedural standards provide for in the Procedures Directive do not apply to a separate and discrete subsidiary protection application.

In relation to the ‘co-operation’ point the Court found that a claim of non-compliance with such a duty of “co-operation” or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts. The applicant in this case eschewed the need to identify any particular finding in the Subsidiary Protection determination which might have been corrected or altered had the applicant been consulted upon it.

Unlike the Procedures Directive, Article 4.1 of the Qualifications Directive refers to the duty of co-operation in respect of the “application for international protection,” that is, the claim to asylum and the claim to subsidiary protection. Article 14.2 of the Procedures Directive recognises, however, that the report of the personal interview with the applicant on which the decision of the determining authority on an asylum application is based, may be communicated to the asylum seeker after the decision has been adopted. The Court found that it would be inconsistent with these arrangements that the duty of cooperation in Article 4.1 should be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision in relation to a subsidiary protection application to an applicant for prior comment. Furthermore, the duty to co-operate provided for in Article 4.1only applies to those elements of the claim described in Article 4.2. These are, in effect, the basic facts and documents relating to the applicant’s personal history and to the basis of the claim and they are primarily considered and assessed in the asylum process including any appeal.

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.

The Procedures Directive does not apply to subsidiary protection decisions when a Member State, such as Ireland, does not have a unified asylum procedure.