Case summaries

Belgium – Council for Alien Law Litigation, 27 April 2009, Nr. 26.511
Country of applicant: Afghanistan

The CALL ruled that exclusion clauses are exceptional provisions with very serious consequences and should therefore be applied in a restrictive manner. There is a presumption of responsibility vis-à-vis persons holding high positions in a regime that is guilty of committing serious human rights violations, but such a presumption is refutable. It does not suffice to refer to the general situation in the country of origin at the time when the applicant held the position.

Date of decision: 27-04-2009
France - CNDA, 24 April 2009, Mr. G., n°625816
Country of applicant: Russia, Russia (Chechnya)

The situation which currently prevails in the Republic of Chechnya does not amount to generalised violence resulting from a situation of internal or international armed conflict.

Date of decision: 24-04-2009
Netherlands - AJDCoS, 22 April 2009 , 200809034/1/V2
Country of applicant: Gambia

The case concerns whether or not the accelerated procedure used in the applicant’s claim was consistent with Art 23.4 of the Asylum Procedures Directive which allows for an accelerated procedure. It was found that the accelerated procedure was consistent with the Asylum Procedures Directive because the applicant was found not to be credible.

Date of decision: 22-04-2009
Germany - Federal Administrative Court, 21 April 2009, 10 C 11.08
Country of applicant: Iraq

This case concerned the assessment of "group" persecution against Arab Sunnites in Iraq. In order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the entire group of persons affected by that persecution ( "density of persecution"). Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included.

Date of decision: 21-04-2009
Czech Republic - Supreme Administrative Court, 15 April 2009, K.K. v Ministry of Interior, 1 As 12/2009-61
Country of applicant: Afghanistan

When a decision on detention is being made it is necessary to consider if the person is a refugee (asylum seeker) and subsequently if expulsion is feasible, and therefore the only permissible purpose of detention.

Date of decision: 15-04-2009
Netherlands - District Court Amsterdam, 7 April 2009, AWB 08/05416
Country of applicant: Sierra Leone

This case concerned the insufficient sourcing of evidence relied upon by the decision maker in dismissing the applicant’s claim for protection. It was found to be a violation of Art 16.1 of the Asylum Procedures Directive where the decision was insufficiently sourced in the applicant’s file. Further that this violation is not remedied by making specific references to those sources before the court. 

Date of decision: 07-04-2009
France - CNDA, 6 April 2009, Mr. K., n°616907
Country of applicant: Kosovo

While Kosovan legislation prohibits any discrimination based on sexual orientation since 2004, persons who publicly acknowledge their homosexuality and demonstrate it in their external behavior regularly face de facto harassment and discrimination, without being able to avail themselves of the protection of the authorities. They constitute a particular social group.

Date of decision: 06-04-2009
UK - Court of Appeal, 2 April 2009, MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289
Country of applicant: Ethiopia

The Court examined the issue of when the refusal of the applicant’s State of nationality to provide documents to allow her to be readmitted to that State represents a denial of the applicant’s nationality and, consequently, provides a basis for a claim for asylum. The Court held that the deprivation of nationality can constitute persecution. It further held that concepts of de jure and de facto nationality, applied by the Tribunal in the appeal, were likely to obscure the question of whether the applicant had a well-founded fear of persecution. It held that the correct standard of proof in respect of the issue of re-documentation will usually be the balance of probabilities rather than a reasonable degree of likelihood. It further held that, to prove her case, the applicant was under a duty to take all reasonable steps in good faith to obtain documents from the authorities of her State of nationality.

Date of decision: 02-04-2009
Spain - High National Court, 25 March 2009, 993/2007
Country of applicant: Russia, Russia (Chechnya)

The applicant lodged an appeal before the High National Court against the decision of the Ministry of Interior to refuse granting refugee status. The refusal was based on the application of an exclusion clause due to the applicant’s alleged membership of a terrorist group and for having committed serious crimes.

It was discussed whether this exclusion clause had been applied lawfully and also if, alternatively, the applicant could be authorised to stay in Spain for humanitarian reasons since, if he was expulsed, there was a risk of suffering inhuman or degrading treatment

Date of decision: 25-03-2009
Belgium – Council of State, 18 March 2009, Nr. 191.585
Country of applicant: Iraq
This case considered whether or not an applicant should be granted a right of appeal, where he had committed fraud in his asylum claim. The Council of State ruled that the general principle of law “fraus omnia corrumpit” (fraud corrupts everything) does not preclude the fact that an applicant has a lawful interest in order to appeal a negative decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) with the Council for Alien Law Litigation (CALL), unless it transpired that the appeal itself was tainted by fraud.
Date of decision: 18-03-2009