Case summaries

Refugee status was granted to the applicants (parents) because of their advocacy in Afghanistan for democracy, separation of state and religion, equality between men and women, and their membership of and support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Refugee status was granted to their children because of their membership of a particular social group of “family”.

Threats by political opponents are to be considered as imminent persecution by non-State actors according to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive. The Afghan State is unwilling and unable to grant protection against such persecution by non-State actors (Art 7 of the Qualification Directive).

Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.

Partly as a result of his detention, the foreigner's financial resources are limited. The obligation to pay €227.00 in court fees for the processing of an appeal therefore constitutes a major breach of the right to access to justice guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union, amongst other provisions. The appeal should therefore have been examined on its merits despite the court fees not being paid.

The Tribunal considered an appeal which raised issues relating to when the arbitrary deprivation of nationality, including the circumstances in which the refusal by the State of nationality to provide documents to allow the applicant to be re-admitted constitutes persecution. It held that these were matters within its jurisdiction and the question of whether a national of a State has been lawfully or unlawfully deprived of that nationality was a legitimate issue to be considered in deciding upon a claim for international protection. Whether arbitrary deprivation of nationality amounts to persecution is a question of fact. The same is true of the denial of the right of return as a national; although in practice it is likely that such a denial will be found to be persecutory.

The Court held that the question of whether discrimination, taken cumulatively, amounts to persecution in a given case is a matter for the Refugee Appeals Tribunal.

The poor living conditions that the Applicants would face in the safe areas in Georgia meant they could not reasonably be expected to remain there. There was no feasible internal protection alternative

There was no serious reason, within the meaning of Article 4 of the Qualification Directive, to rule out with sufficient confidence that the risk of persecution, from which it is established that the applicant suffered, would not be repeated.

A nexus between an act of persecution and the persecution ground is only necessary to meet the definition of a refugee, but not, however, to determine the question of whether persecution (an act of), and therefore a reason against rejecting the application for international protection, was raised during the procedure at the airport.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

This was an appeal against the rejection of an application for asylum before the Appeal Committees formed pursuant to Articles 26 and 32 of Presidential Decree 114/2010; and against the Minister for Citizen Protection's decisions 5401/3-498356 dated 11.2.2011 and 4000/1/67-f dated 18.5.2011. The rejection of the application (and the legal consequences arising from the rejection) was an excusable error, due to the body issuing the decision having adopted misguided practices. The fear of persecution was based on  membership of a particular social group. The domestic violence endured by the Applicant in the form of psychological stress and physical violence at the hands of her husband, in conjunction with the absence of State protection, constitutes a type of gender based persecution because those actions are detrimental to human dignity and physical integrity. Similarly, her non-conformist behaviour meant that she was exposed to the State's strict laws and practices which imposed disproportionately harsh punishment on women accused of having sexual relations outside marriage.

It was held that the implementation of laws (which may be derived from traditional or cultural norms and practices such as Sharia) which conflict with international human rights standards, and also the disproportionately harsh punishment imposed for non-compliance with a policy or for violation of a law (punishment, indeed, which shows gender based discrimination) could constitute persecution.

The imposition of corporal punishment by judicial and administrative authorities is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Applicant's disproportionately harsh punishment by whipping or even stoning is considered to be torture and constitutes a serious form of persecution since the right to not be subjected to torture or inhuman or degrading treatment is a protected right which is not subject to any exceptions. The prohibition of torture (Article 3 of the ECHR and Article 3 of the Convention against Torture) is absolute, and a grave violation of absolute rights is, undeniably, persecution.

The importance of preserving family unity is emphasised, taking into consideration the Final Act of the Conference which adopted the 1951 Convention relating to the Status of Refugees and the Preamble to Directive 2004/83/EC.