Case summaries
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.
An Ethiopian man was considered eligible for protection as a refugee due to his involvement in the government-hostile OLF guerilla group, which has been declared a terrorist organisation.
The Applicant fled to Austria to be with her husband. She pleaded no reasons for fleeing such as problems of living as a woman in Afghanistan and the Federal Asylum Agency also made no investigations into this aspect. Only in the appeal were specific women’s issues raised. The Asylum Court decided that the Federal Asylum Agency was obliged to undertake the appropriate investigations under apparent theoretical circumstances relevant to asylum (such as gender), even if the party did not initiate such a submission.
In assessing a claim for asylum, the Tribunal erred in concluding that the discrimination likely to be faced by the minor applicant (as an Ashkali) in receiving an education in Serbia did not rise to the level of persecution, particularly given the importance of the right to education in availing of other human rights.
Tibetans in China are not at risk of “group persecution” based on their ethnicity. However, individual acts of persecution (the rape of a Tibetan woman by security forces in the present case) do constitute past persecution since they have to be regarded as being connected to the persecution ground “race”.
Refugee status was granted to a Kosovar family of Roma origin based on their ethnicity being recognised as a particular social group. The court found that they faced a risk of persecution and that state protection was either unavailable or ineffective.
An applicant from Somalia was eligible for refugee status. The court found:
- There was sufficient probability that the applicant’s life and freedom, in case of return to Somalia, were at risk due to his membership of a particular social group.
- Clan membership constitutes a particular social group.
- Protection against persecution is not provided by the State, by parties or by other organisations in Somalia.
- There is no internal protection in Somalia.
An applicant from Guinea was recognised as a refugee. The court found that because of his homosexuality he faced a threat of persecution from family members. The State was unwilling or unable to provide protection.
A former officer in Saddam Hussein’s Security Services was excluded from protection due to possible crimes against humanity. He was however granted a temporary residence permit as the decision could not be executed without violating the principle of non-refoulement.