Case summaries
It must be noted that the Applicant’s occupation as a pharmacist meant that according to the country of origin information, he could be a target group for the country`s security forces if they suspected that assistance was being provided to the insurgents. This was considered to constitute the Applicant`s imputed political opinion to be taken into consideration in light of the right to asylum, in other words, circumstances to be considered pursuant to the Geneva Convention.
Instead of non-refoulement, the Court granted the Applicant subsidiary protection status because he would be at risk of serious harm upon returning to his home country (torture, cruel, inhuman, degrading treatment or punishment).
The Respondent's evidence on the safety situation in Kabul and the possibilities for seeking employment, finding somewhere to live and establishing social networks provided the grounds for the Respondent's decision as well as for the judgment by the court of first enstance, both of which stated that the Applicant, in the event that he returned to Kabul, in his country of origin, would be provided with internal protection from serious harm, and that he is thus not entitled to subsidiary protection in the Republic of Slovenia.
The Council for Alien Law Litigation confirmed that those who enjoy subsidiary protection are equivalent to recognised refugees, for the purposes of family reunification. This means that they are exempted from additional conditions in relation to housing, health insurance, and means of subsistence provided that the application for family reunification is submitted within one year and the family ties existed before the arrival in Belgium of the reuniting person (who enjoys subsidiary protection). This is despite the fact that those who enjoy subsidiary protection do not fall within the scope of application of the Family Reunification Directive.
The Court recognised the Applicant as a refugee because he would be at risk of persecution due to his political opinions upon returning to his home country.
Rather than dismissing the application, the Court recognised the subsidiary protection status of the Applicant, as his/her return to the country of origin would lead to the risk of serious harm (inhuman, degrading treatment or indiscriminate violence).
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.
Recalling the direct applicability of the Qualification Directive (Article 28, 29, recital 34), the Labour and Social Court of Vienna held that the refusal of a care allowance for beneficiaries of subsidary protection status was unlawful. The (minimum) core benefits to be granted to beneficiaries of subsidary protection status are to include at least support in the event of illness, whereby in accordance with Community law, the Austrian care allowance represented such support in the event of illness.
In the present case certain formal conditions for dismissing the application through an accelerated procedure as defined in Article 54 of International Protection Act (ZMZ) were not taken into account. The Ministry of the Internal (MI) did not take a stance as regards the circumstances that the Applicant claimed as the grounds for leaving his country of origin and applying for international protection.