Case summaries

The third action in a row brought by a foreign woman for refugee status ended in the issue of a judgment dismissing the case as it was found that the basis for the application was the same as in the previous cases and the application was therefore inadmissible. The Court overturned the negative decision by the Polish Council for Refugees, as the new application by the foreign woman stated that she had divorced her then husband and had been in a relationship for a year with a Polish citizen, which might cause persecution on religious grounds were she to return to her country of origin.

There is not currently an indiscriminate conflict in Afghanistan (as a whole, or in any province) within the meaning of Article 15(c). Internal protection is in general possible in Kabul; however it is unreasonable to expect certain categories of women to seek internal protection within Afghanistan.

The Afghan applicant was granted subsidiary protection status during the court proceedings. The authority must make sure that the applicant is not at risk of serious harm or persecution in the relevant part of the country, not only at the time the application is assessed but also that this is not likely to occur in the future either. Countries struggling with armed conflicts do not normally provide safe internal flight options within the country, as the movement of front lines can put areas at risk that were previously considered safe.

The authorities of first and second instance—the Head of the Office for Foreigners and the Polish Council for Refugees—refused to grant refugee status or other forms of protection to an applicant from Uganda who had applied for refugee status because of his sexual orientation. They made the same decisions but on fundamentally different grounds and factual findings. The  first instance authority found that the applicant was homosexual but that the information about the country of origin indicated that his fear was not well-founded. The  second instance authority found that homosexuals are at risk of persecution in Uganda but that the applicant was not homosexual, and the opinion of a doctor who is a sexologist did not prove sexual orientation. Instead, this needed to be proved based on the testimony of the applicant, which is then verified in the context of his general credibility during the proceedings.

1. Changes in the home country are only considered to be sufficiently significant and non-temporary if the refugee’s fear of persecution can no longer be regarded as well-founded.
2. Based on the jurisprudence of the European Court of Human Rights (ECtHR) which applies to the concept of “real risk” according to Article 3 ECHR (European Convention on Human Rights), a uniform standardof probability is applied to assessing the likelihood of persecution in the context of refugee protection; this corresponds to the standard of substantial probability. 

The Syrian Kurdish Applicant has been persecuted and tortured for his nationality and imputed political opinion.

Although the asylum seeker has been unable to offer any credible account of the death penalty allegedly imposed on him due to his homosexuality, it must nevertheless be assessed whether, he has grounds to fear persecution or is in real danger of suffering serious harm in his home country due to his sexual orientation, and what weight must be given to the fact that he must hide his homosexuality to avoid this kind of threat. The judgments of the Administrative Court and the Immigration Service were overturned and the case was returned to the Immigration Service for further consideration. 

1. If an Iranian national is declined the opportunity to obtain a school-leaving certificate and attend a state school because of the refusal by Iranian authorities to issue him with identity papers, this constitutes a significant discriminatory administrative measure according to Article 9 paragraph 2 of the Qualification Directive.

 
2. The right to suitable education corresponding to a child’s abilities is recognised as a human right according to international law.

This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application. 

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.