Case summaries
If an applicant has serious criticism of a language test conducted to determine their country of origin, the Migration Board must investigate the grounds before making a decision, or at least respond to the applicant's criticism so that the submission can be completed.
If the Migration Court considers a language test report to be unreliable or inadequate, it can decide to request a new language analysis or return the case to the Migration Board for further investigation, but cannot choose to ignore the analysis entirely.
The applicant was eligible for subsidiary protection as an internal armed conflict is taking place in Logar. The applicant, in case of return to Afghanistan, could not relocate to Kabul, since he could not secure his livelihood there. In order to secure his livelihood, he could not rely on property which his family had possessed in the province of Logar.
Young Nigerian women, especially those coming from the region of Benin City (State of Edo), who were forced to prostitute themselves in Europe in a transnational network of human trafficking, and who managed to extricate themselves from this network and to stop this forced activity, should not be seen as members of a particular social group in Nigeria. However, they face inhuman or degrading treatment in case of return to their country of origin and should therefore be granted subsidiary protection.
The administrative authorities, when carrying out an assessment of whether a subsequent application for refugee status is inadmissible (based on the same grounds), should compare the factual basis for the administrative case on which a final decision has been made with the testimony of the foreignor provided in the subsequent application and should also examine whether the situation in the country of origin of the applicant and also the legal position have changed.
At issue in this case was whether the applicant qualified for subsidiary protection or protection for humanitarian reasons, considering her personal circumstances of extreme vulnerability.
The applicant claimed asylum in November 2009 alleging a well founded fear of persecution for reasons of race and religion. The application was refused by the Ministry of Interior on the grounds that the application did not amount to persecution in accordance with the 1951 Refugee Convention. On appeal, the High National Court re-examined the application and held that the conflict which had arisen in the Ivory Coast had to be taken into account and on that basis subsidiary protection should be granted.
The court found that a prohibition of deportation under Section 60 (2) of the Residence Act (corresponding to Art. 15 (b) of the Qualification Directive) was established due to the existence of a general risk of persecution in case of return to Syria. The Administrative Court, in their assessment of risk, went far beyond the prevailing case law, particularly that of the High Administrative Courts.
A particular mode of persecution cannot be detected in Syria due to the arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted.
A further deterioration of the situation has occurred in light of recent developments and the bloody suppression of the protest movements.
Currently even persons who have not been politically active in exile are, with considerable probability, at risk of being arrested on return, not only for a short period - they are also at risk of torture and other inhuman treatment.
It is in principle possible for men to be persecuted on account of their gender. However, classifying the punishment for extramarital sex in Afghanistan as persecution on account of both membership of the group of men and the group of women would cover the entire society and renders the definition meaningless. Therefore, the applicant was not granted refugee status but his deportation was prohibited under Section 60 (2) of the Residence Act / Art 15 (b) of the Qualification Directive.
The fact that one of the grounds for requesting asylum was to legalise residency in the Czech Republic was not sufficient in itself to allow the application to be deemed unfounded.
The Ministry of Interior must address all factual statements made, even if not formally named as grounds for the asylum application.
This Judicial Review concerned the way in which the Minister for Justice should assess applications for subsidiary protection and, in particular, whether the duty to ‘co-operate’ with the applicant referred to in Art 4.1 of the Qualification Directive 2004/83/EC means that the decision maker must communicate matters of concern to the applicant before making a final decision. As there appeared to be a conflict between the Irish and Dutch interpretations of Art 4.1, and uncertainty as to the true meaning of the phrase ‘in co-operation with’ the Court (Hogan J) referred a question to the CJEU.