Case summaries

UK - Court of Appeal, 18 November 2010, RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285
Country of applicant: Zimbabwe

The rationale of the decision in HJ (Iran) (see separate summary in this database) applies to cases concerning political opinion. Consequently an individual cannot be expected to modify their political beliefs or deny their opinion in order to avoid persecution. The situation in Zimbabwe was exceptional. At that time, the country guidance held that those who were unable to demonstrate their loyalty to the regime were at risk of persecution. Thus, those with no political beliefs could not be required to profess their loyalty to the regime to avoid persecution and were entitled to refugee status.

Date of decision: 18-11-2010
Finland - Supreme Administrative Court, 14 Nov 2010, KHO:2010:2681
Country of applicant: Somalia

The applicant informed the authorities in Finland that he was a minor; however, he was registered as an adult in Malta. It was decided that the applicant must clarify and correct the information given to the authorities in Malta with respect to his age. Malta was deemed responsible for examining the applicant’s asylum claim under the Dublin II regulation even though he would have been considered a minor when applying for asylum in Finland.

Date of decision: 14-11-2010
UK - Upper Tribunal, 13 November 2010, RR (Refugee-safe third country) Syria [2010] UKUT 422
Country of applicant: Syria

In this case the court considered the risk to a refugee of indirect refoulement from a third country. 

Date of decision: 13-11-2010
Ireland - High Court, 12 November 2010, A. v Minister for Justice [2010] IEHC 519
Country of applicant: Nigeria

The applicant in this case claimed to fear persecution in Nigeria on account of his sexuality. A decision to affirm a deportation order against him was quashed on the basis that insufficient assessment was given to whether the applicant’s human rights would be infringed by the behaviour required of him in order to avoid persecution. The thrust of the refugee and subsidiary protection decisions in the case, and of the deportation decision, was that the applicant could hide his homosexuality and not therefore expose himself to persecution, prosecution or serious harm.  

Date of decision: 12-11-2010
Germany - Administrative Court Frankfurt / Oder, 11 November 2010, VG 4 K 772/10.A
Country of applicant: Cameroon

Refugee status was granted as the applicant was deemed at risk of persecution due to his homosexuality. The court found that homosexuals constitute a particular social group in Cameroon according to Section 60 (1) of the Residence Act / Art 10.1 (d) of the Qualification Directive. According to the Qualification Directive, sexual orientation does not only constitute an unchangeable characteristic, but is so fundamental to the identity of a person that he/she should not be forced to denounce it. That means that under the Qualification Directive it is no longer important if the applicant can persevere with abstinence in the long term. The punishment which the applicant would face due to homosexual acts in case of return does not simply constitute criminal prosecution, but is persecution in terms of Section 60 (1) Residence Act.

Date of decision: 11-11-2010
UK - Upper Tribunal, 11 November 2010, AW (sufficiency of protection) Pakistan [2011] UKUT 31(IAC)
Country of applicant: Pakistan

In assessing state protection, a judge must look, notwithstanding a general sufficiency of protection in a country, to the individual circumstances of the applicant. In assessing whether an appellant’s individual circumstances give rise to a need for additional protection, account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. When considering whether past persecution is a serious indication of a well founded fear under Article 4(4) of the Qualification Directive, Recital 27 to the Directive indicated that the past ill treatment of family members was also relevant.

Date of decision: 11-11-2010
Finland - Helsinki Administrative Court, 10 Nov 2010, 10/1514/1
Country of applicant: Iraq

The Administrative Court held that the results of language analysis alone, contradicting the applicant’s description of events, cannot be seen as sufficient proof of the applicant’s place of residence if no other facts have been presented to support the result of the language analysis.

Date of decision: 10-11-2010
CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D

These joined cases concerned two Applicants who were denied protection in Germany on the basis of the exclusion provisions in the Qualification Directive.  Upon appeal the German Courts found that even if they were excluded under the Qualification Directive they may still entitled to the right of asylum recognised under Article 16A of the Grundgesetz. The CJEU, in examining Article 12, the exclusion provision in the Qualification Directive, found that the fact a person was a member of an organisation which is on the EU Common Position List 2001/931/CFSP due to its involvement in terrorist acts, does not automatically constitute a serious reason to exclude that person. Exclusion is not conditional on the person concerned representing a present danger to the host Member State or on an assessment of proportionality.

Date of decision: 09-11-2010
Sweden - Migration Court, 4 November 2010, UM 2675-10
Country of applicant: Nigeria, Senegal

The Migration Board accepted the applicant and her children were in need of international protection as refugees in relation to Senegal but claimed that they could obtain protection in Nigeria (considered a safe third country). The Migration Court upheld the applicant’s appeal stating that once a case has been examined in substance in relation to a country of origin and protection needs ascertained it is not possible subsequently to refuse protection by referring to a safe third country. Cases concerning safe third countries must be dismissed in accordance with Art 25.2(c) of the Asylum Procedures Directive which is transposed into Swedish law by the Aliens Act (2005:716) Chapter 5 Section 1 (b).

Date of decision: 04-11-2010
Spain - High National Court, 3 November 2010, 555/2009
Country of applicant: Bangladesh

The applicant sought asylum in Spain claiming to have suffered persecution in Bangladesh on the grounds of membership of a group (the Beharies) determined by its ethnic identity. This persecution intensified when the war with Pakistan broke out. The Ministry of Interior refused the application which was appealed by the applicant to the High National Court. This court examined if persecution under the 1951 Refugee Convention could be established, beyond a case of discrimination.

Date of decision: 03-11-2010