Case summaries
The judgment defined a particular social group as a group of persons that objectively share common characteristics or who at least are perceived to do so by society. This characteristic is often of an innate and unchangeable nature or is otherwise fundamental to human identity, conscience or to the exercise of those particular persons’ human rights. This characteristic cannot be constituted by the risk of persecution itself.
Refusal to perform compulsory basic military service cannot be considered as a reason for granting asylum, particularly if such a refusal is not connected with manifested political or religious beliefs.
The case concerned an application for asylum for humanitarian reasons under the provision of Art 14 of the Asylum Act. The Court held that integration and a long period of residence in the Czech Republic, including being born on the territory, are not as sufficient reasons to fulfil the conditions of humanitarian asylum.
If any fact emerges during the interview, which indicates that the applicant could be persecuted for exercising his political rights and freedoms, or has a well-founded fear of being persecuted on the grounds upon which asylum can be granted, the Ministry of Interior obliged to conduct the interview in a way that would achieve an outcome which is sufficiently clear for the needs of considering the asylum claim. It is also necessary to evaluate the way in which state power is exercised in the country of origin, and the real possibility of exercising one’s political rights and other circumstances that could establish grounds for international protection.
Belonging to a group of people without power or influence does not constitute a particular social group and therefore cannot be deemed a convention ground for persecution under the Refugee Convention.
The European Court of Human Rights found that there had been a violation of Article 5(1) ECHR through the unlawful detention of two Libyan nationals by the Polish authorities after the expiration of an expulsion order due to be executed within 90 days.
When a transfer under the Dublin Regulation would result in a violation of fundamental rights, the Member State in which the applicant is present can examine the asylum application even though another State should have been responsible under the Dublin Regulation. In this case, the applicant’s wife was allowed to remain in France as she was in the advanced stage of pregnancy and, therefore, transferring the applicant would violate Art 8 ECHR.
The Court of Appeal gave guidance on the relevant factors to consider in assessing claims for protection against persecution from non-state actors under the Refugee Convention and Article 3 of the ECHR.
The 1951 Refugee Convention does not provide protection in respect of claims of conscientious objectors who feared imprisonment for their refusal to undertake military service where there is no alternative service offered in national law. This was the position even if that objection is to all forms of military service and is absolute. The right to conscientious objection was not yet protected in international human rights law and was yet to emerge as a principle of customary international law. A claim may succeed if the applicant would be required, in the course of military service, to conduct military action that breached the basic rules of human conduct or if the punishment they would receive for refusal to serve was discriminatory or disproportionate. Secondly, when assessing whether persecution was “for” a Convention reason the decision-maker should ask the question of “what was the real reason for the persecution?”. The decision-maker should not limit the enquiry to the persecutor’s motivation but should look for the effective reason or reasons.