Case summaries
This preliminary ruling concerned the interpretation and application of Article 15(c) of the Qualification Directive and the protection offered under this provision.
The Ministry of Interior is obliged to consider whether the conditions for granting subsidiary protection are fulfilled even when the application for international protection is dismissed as manifestly unfounded when it is clear that the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her removal, and if the applicant has failed without reasonable cause to make his or her application earlier, having had opportunity to do so.
A permit to stay, granted on humanitarian grounds to a foreigner whose application for asylum has been rejected until such time as it becomes feasible for him to go abroad, is of a temporary nature. It is possible to extend the validity of such a permit if there are exceptional circumstances relating to the prevailing situation in the foreigner's country of origin and/or relating to his personal circumstances. When an application to extend a permit to stay is submitted, the Administration should examine any exceptional grounds that may have been put forward.
Unlike with subsidiary protection, it is necessary for there to be a causal link between persecution and the grounds for persecution when assessing the conditions for granting asylum. The fact that a conflict between LTTE and governmental armed units affected Tamil civilians does not mean nationality qualifies as a ground of persecution.
The Migration Board set out the burden of proof for presenting an internal protection alternative. The area has to be clearly identified as well as being relevant and plausible.
The principle of family unity, which is a general principle of refugee law resulting in particular from the 1951 Refugee Convention, is not applicable to persons falling within the scheme of subsidiary protection, as defined both by the Qualification Directive and by the internal legislative provisions which transpose it.
It is important to inquire whether there are elements relative to the situation of homosexuals in their country which enable them to be considered as forming a group whose members would face a risk of persecution, for reasons of common characteristics which define them in the eyes of the authorities and society.
The situation in Paktia province in Afghanistan meets the requirements of an internal armed conflict in terms of Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive. An internal armed conflict does not necessarily have to affect the whole of the country of origin. The concept of internal protection does not apply if the applicant cannot reasonably be expected to reside in another part of the country because of an illness, even if that illness is not life-threatening (epilepsy in the case at hand).
The applicant was not granted refugee status or protection against deportation in accordance with Section 60 (2) through (7) of the Residence Act. The court found:
- A single woman with a “Western” lifestyle is not at risk of gender-based political persecution by non-State actors in Iraq.
- The risk of the applicant becoming a victim of an honour killing (or respectively a weaker, non-life threatening disciplinary measure by her clan) because of her moral conduct, disapproved by her clan, constitutes an increased individual risk. However, this risk is not the result of arbitrary violence, but constitutes a typical general risk.
This case concerned whether or not a proper assessment of an internal protection alternative had been carried out. It was found that careful research had not been done regarding the question of whether a part of Colombia meets the internal protection criteria as set out in Art 8.1 of the Qualification Directive, taken together with Art 8.2 of the Qualification Directive.