Case summaries

1. The issue as to whether an asylum-seeker was already protected against political persecution in a third country is only relevant in terms of  the asylum application for recognition of refugee status in the context of the concept of the first country of asylum as defined in EU law in Article 29 of the Asylum Procedures Act (Articles 25 and 26 of the Asylum Procedures Directive).  

2. If the Federal Office has reached a decision on the asylum application in this case, the substantive question of the subsidiarity of refugee protection in the assessment of refugee status is no longer applicable.

The situation in Somalia, in particular in the South and Central regions, should be regarded as a situation of generalised violence resulting from an internal armed conflict.  

A single woman with two illegitimate children from relationships not approved of by the family (who are Muslim) may be subject to inhuman or degrading treatment in the country of origin by the members of her family.

The particular social group within the meaning of the Convention relating to the Status of Refugees is the group comprising single mothers of illegitimate children living in Muslim families and societies.

The notion of “well-founded fear” has not been precisely defined. However, it is commonly accepted that it must necessarily contain two elements: a subjective element (the party has a real and credible fear of persecution) and an objective element (this fear has a basis in reality).  A person applying for refugee status should present facts and possibly evidence confirming that they were persecuted in the past or that they fear persecution upon returning to their country of origin. Other reasons for a foreigner leaving their country of origin or fearing a return to their country of origin are immaterial as regards recognition of their refugee status.

Conclusions on exclusion from protection are to be supported by factual findings and cannot be presumed, especially with an applicant, who through the credibility assessment, is deemed to be untrustworthy by an administrative body. Belonging to the army under Saddam Hussein might, together with the Sunni religion of the applicant, be understood as a reason for well-founded fear of persecution because of membership of a particular social group.

The Court granted permission to the Applicant to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African national. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ but because the appeal decision was based on personal credibility, the absence of an oral hearing may have been unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive.

A social group is not formed by those of whom it consists, or even by the objective existence of characteristics ascribed to them, but by the way in which surrounding society or institutions regard them. 

This case concerned exclusion from refugee status on the basis of a war crime and a serious non-political crime.

A Chechen who was involved in the Second Chechen War - outside of the general combat action - in the killing and wounding of Russian soldiers and the kidnapping of a Russian officer to force the release of another Chechen is at risk of being exposed to torture or at least inhuman or degrading treatment or punishment in the Russian Federation. 

This case concerned a real well-founded fear of persecution (re-enslavement of the Applicant), failure to recognise the Applicant's refugee status as a member “of a particular social group” and a finding that his fear was not due to the grounds for persecution as defined by Article 1A of the Convention.

It was held that, should he return to his country, there was a risk that the Applicant would suffer serious harm (inhuman and degrading treatment because of potential re-enslavement) which justified granting him subsidiary protection under Article 15(2)(b) of the Directive.

Furthermore, and irrespective of the above, the Committee felt that it would amount to inhuman and degrading treatment under the said Article if the Applicant (who was suffering from chronic renal failure and hypertension) were deprived of the appropriate medical care and treatment for his condition, believing that should he return he would possibly not have access to the health care system (which was, in any case, deemed ineffective) in his country of origin, and this would be tantamount to a breach of Article 3 of the ECHR.

The case refers to an appeal to the Supreme Court brought by the appellant against the High National Court’s decision to reject the appellant’s administrative appeal against the denial of his application for refugee status. 

The appellant is a Columbian national and claims to fear political persecution if he is returned to his country because of threats from the FARC group (Revolutionary Armed Forces of Columbia) due to the appellant’s refusal to permit two of his sons to join the armed group.

 The Supreme Court rejects the appeal, affirming the High National Court’s decision to deny asylum.Furthermore, the Supreme Court rejects the appeal for protection on the grounds of humanitarian considerations as contained in Spanish Law.