Case summaries
This case concerned the interpretation of Article 4.3 of the Qualification Directive and the nature of the assessment of the facts and circumstances of a refugee application that should take place. The Court rejected the argument that a failure by a first instance decision-maker to consider each of the mandatory matters set out in Article 4.3 rendered that decision unlawful such that it must be quashed, rather than allowing for any such defect to be cured by an appeal body. The obligation imposed by the Directive is satisfied when any errors or misjudgements at the first instance stage, including deficiencies in complying with Article 4.3 are remedied by an appeal stage.
Subsidiary protection pursuant to Art. 14a(2)(b) of the Act on Asylum (serious harm consisting of inhuman or degrading treatment) may also be granted in so-called humanitarian cases. This goes beyond the scope of Article 15(b) of the Qualification Directive; however, it is compatible with the directive. In order to grant subsidiary protection in so-called humanitarian cases, the factual circumstances need to reach the standard set out in the judgment of the ECtHR, D. v. the United Kingdom.
Social exclusion can be considered as "exceptionally distressing circumstances" and thus grounds for a residence permit.
A young Christian man who had not been in his country of origin since childhood was not considered eligible for a residence permit based on exceptionally distressing circumstances in spite of the fact that his family resides in Sweden and that he is likely to face social difficulties on his return.
The applicant complained that the refusal to recommend refugee status at first instance contained errors such that on appeal the “core claim” was effectively being heard for the first time, and further the subsidiary protection assessment was not in compliance with statutory requirements which gave effect to the Qualification Directive; and that he should have had a chance to comment on country of origin information used in the assessment of his application.
This case concerned the criteria that needed to be fulfilled in order to establish the existence of an internal armed conflict. It was held that in Somalia’s capital, Mogadishu, at the time of this decision, a state of internal armed conflict was found to exist without an internal protection alternative. The applicant was therefore considered in need of protection.
Subsidiary protection can be granted if on return to their country of origin an applicant would face a real risk of torture, inhuman or degrading treatment or punishment. The question at issue was whether the reasons for such ill-treatment related to Refugee Convention persecution grounds or not. All international protection statuses require an individual threat, which cannot be indirect as the risk assessment is a future oriented examination of the possibility of a threat, along with the applicant’s individual circumstances and the probabilities of risk.
If a subsequent asylum application is based on circumstances which the applicant has created by his own decision, refugee status shall not be granted if the applicant was able to develop his own political conviction at the time of the (termination of the) preceding asylum procedure. This can be assumed to be the case at the age of 16, or at the age of 18 at the latest.
The Office of Immigration and Nationality (OIN) found the applicant not credible and therefore did not assess the risk of serious harm. Instead the OIN granted protection against refoulement. The Metropolitan Court ruled that the OIN was obliged to assess conditions for subsidiary protection and serious harm even if the applicant was not found credible.