Case summaries
The situation of generalised violence resulting from a situation of internal armed conflict ended after the victory of the Sri Lankan army over the LTTE in May 2009. Furthermore, the fact that the applicant belonged to the Tamil community was not sufficient to justify his fears of persecution considering the situation which prevails in Sri Lanka, which cannot be seen as characterising a situation in which the destruction of a specific ethnic group is pursued, since the civilians of Tamil origin are not targeted for persecution by the governmental authorities solely for reason of their ethnic origin.
The Applicant, S.H., is a Bhutanese national of ethnic Nepalese origin who currently lives in Huddersfield. He claimed asylum in the UK, but the application was refused and he was served with removal directions. Prior to his removal, the Court indicated to the United Kingdom Government that he should not be expelled. Relying on Article 3 (prohibition of inhuman or degrading treatment), the Applicant complained that his removal to Bhutan would expose him to a risk of ill-treatment on account of his ethnicity, his status as a failed asylum seeker, and as the close relative of a human rights activist who has been granted asylum in the United Kingdom.
Although gender based persecution is not expressly mentioned among the reasons for recognising refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.
Although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.
A well-founded fear of persecution may also be based on events that took place after the Applicant left his country of origin (refugee sur place). Sur place evidence refers to circumstances which arose after the Applicant left his country of origin and which are as a rule connected with a change in the situation in the country of origin, but one cannot exclude other events which are closely linked with the person applying for refugee status and which occurred after he left his country of origin.
The CALL ruled that it is an applicant’s obligation to give as complete a picture as possible of their profile and past, including the countries and places of previous residence, in order to allow an assessment of the need for subsidiary protection. In the case of a stay/residence of many years outside his/her country of origin, it cannot be ruled out that the applicant has citizenship in a third country and that protection in Belgium is not needed.
The CALL ruled that the Qualification Directive, with reference to the grounds for revocation, clearly shows a difference between the various types of protection and that there is no indication that the Belgian legislator wished to deviate from this. Subsidiary protection can be revoked on the basis of a “serious crime” committed after protection was granted.
The case involves consideration by the Supreme Court of Ireland of whether or not the Minister for Justice has a discretion to consider an application for subsidiary protection from a person who has a deportation order made prior to the 20.10.2006, the date on which the law transposing the Qualification Directive came in to effect in Ireland. The Court overturned a decision of the High Court and stated that the Minister for Justice does not have discretion to consider an application for subsidiary protection from a person with a deportation order prior to the 20.10.2006.
In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.