Case summaries

The applicant claimed asylum in 2006 (along with her children) alleging a well founded fear of persecution on the grounds of political opinion. The application was refused in the initial procedure and on appeal.  She returned to Colombia and two years later, returned to Spain and reapplied for asylum and was again refused. She lodged an appeal before the Supreme Court and was granted subsidiary protection.

The applicant, from Iran, claimed asylum based on his political opinion and religious belief (the applicant converted from Islam to Christianity on arrival in Finland). Refugee status was refused as the applicant failed to establish that he had come to the attention of the authorities through political activities or religious practices. A residence permit was granted based on subsidiary protection. The Court relied on the applicant’s conversion to Christianity, evidence of harassment of Christians in Iran and the overall deteriorating human rights situation.

Even if the conditions for considering a subsequent application as inadmissible are fulfilled, the Ministry of Interior is still obliged to consider whether the applicant is in danger of serious harm upon return to his or her country of origin.

In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.

The Helsinki Administrative Court found that a female minor from a town near Mogadishu was in need of subsidiary protection. The Court held that to return home the applicant would have to travel via Mogadishu which would place her at serious and personal risk due to the nature of the armed conflict.

1. In principle, a threat of female genital mutilation (FGM) has to be considered as political persecution according to Section 60 (1) Residence Act.
2. In Nigeria, FGM is still widespread in all known forms. For the Edo ethnic group, it is usually performed between seven and fourteen days after birth.
3. The number of circumcisions performed (among the Edo ethnic group) during puberty has decreased significantly in recent years and circumcisions in adulthood are no longer performed, or they are only carried out in a small number of cases.

In the present case the court found that it was unlikely that the applicant was at risk of FGM considering her age (five years) and the fact that both her parents opposed the practice. Further, the requirements of ‘Prohibition of deportation’ (Section 60 (2) through (7) of the Residence Act) were not established; it was considered unlikely that the applicant would actually return to Nigeria as her mother had residency in Germany.

The facilitated standard of proof of Art 4.4 of the Qualification Directive was deemed to be applicable both in the decision-making on the granting of refugee status and in the decision-making on the granting of subsidiary protection. The "reduced standard of probability" (of sufficient safety), as it has been developed by the German asylum jurisprudence, is no longer relevant for the examination of refugee status or subsidiary protection. In case of a concrete danger of torture or inhuman or degrading treatment or punishment the prohibition of deportation of Section 60 (2) of the Residence Act applies unconditionally, this includes deportations to signatory states of the European Court on Human Rights.

This case concerns the criteria for determining a serious individual threat and the necessary level of indiscriminate violence in an internal armed conflict.In order for Art 15 (c) of the Qualification Directive to apply, it is necessary to determine the level of indiscriminate violence in the territory of an internal armed conflict. When determining the necessary level of indiscriminate violence, not only acts which contravene international law, but any acts of violence which put life and limb of civilians at risk, have to be taken into account. In the context of Art 4.4 of the Qualification Directive, an internal nexus must exist between the serious harm (or threats thereof) suffered in the past, and the risk of future harm.

In this case the Court applied the CJEU’s decision in Elgafaji and the UK Court of Appeal’s decision in QD and AH (see separate summary on EDAL) and considered whether UK Immigration Tribunals had jurisdiction to consider Art 15 (c) in cases where removal directions had not been set. The specific issue concerned the risk of indiscriminate violence en route from Mogadishu to a safe area. It further considered and made important obiter comments on the ambit of Art 15 (c).

Threats from terrorists against a person who has worked for the international forces in Iraq do not justify the granting of refugee status. Iraqi citizens who have cooperated with the occupying forces do not form a “social group” within the meaning of the Qualification Directive. However, the applicant is entitled to subsidiary protection since there is an armed conflict in the Nineveh region and because the threats by terrorists experienced in the past constitute individual “risk-enhancing” circumstances.