Case summaries

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 High Court held that the Minister is entitled in a subsidiary protection application to rely on the findings made during the refugee status determination process unless these findings are legally wrong or the reasoning is defective. The Applicant cannot “collaterally attack” the findings of the Refugee Appeals Tribunal (RAT) (which have not otherwise been challenged) through a judicial review of the subsidiary protection decision. The lapse of time amounting to almost one year between the oral hearing by the RAT and the issuing of its decision, could not be challenged in the context of seeking to review the subsequent subsidiary protection decision, and the reliance by the Minister on the RAT’s use of an expert medical report was permissible.

This case concerns the State’s obligation to attempt to trace the family members of unaccompanied minor asylum seekers.

The actual risk of inhuman treatment or punishment by the Taliban because of desertion from one of their forced recruitment training camps can justify a deportation ban according to clause 60 (2) of the Residence Act (Article 15(b) of the Qualification Directive) in the case of Afghanistan.
Targeted criminal violence is defined in Article 15 (b) of the Qualification Directive (clause 60 (2) of the Residence Act) but not in Article 15 (c) of the Qualification Directive (clause 60 (7) p. 2 of the Residence Act), because in this context there is no specific risk of an internal armed conflict, i.e. “indiscriminate violence”.  

The real risk of suffering the type of serious harm envisaged in Article 15(b) of the Qualification Directive (torture and inhuman or degrading treatment) may be established by an Applicant who proves that he is a member of a group systematically targeted for such harm and who does not put forward any other circumstances relating to his individual case. 

The judgment of the European Court of Human Rights (ECtHR) in R.C. v. Sweden (Application no. 41827/07) has a definitive impact on how protection needs are assessed and the scope of the duty of Swedish courts and authorities to investigate claims of torture.

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.

The Plaintiff’s previous experience does not lead to the  conclusion that the Plaintiff is afraid of persecution (in the event that he was returned) based on race, religion, national identity, membership of a particular social group or a certain political belief, as his fear is based on the possible consequences of retribution merely because he fled. According to the judgment of the Supreme Court the fact that he fled from the Taliban does not make him a “member of a particular social group” on the basis of which his refugee status could be recognised.

Because the Plaintiff did not mention his current political conviction and his current anti-Taliban religious belief when applying for international protection he is not entitled to a refugee sur place status. 

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.