Case summaries

Subsidiary protection was granted to the applicant due to the lack of his family ties in Afghanistan on the basis of the risk of serious harm (torture and inhuman treatment).

This was a decision on an injunction application in the course of judicial review proceedings challenging a subsidiary protection decision and deportation order on the basis of a failure by the Minister to cooperate with the applicant in processing the subsidiary protection application and that the failure to provide a mechanism of appeal against a refusal of subsidiary protection  breaches the principal of equivalence in European Union law in that the procedure under the (Irish) 2006 Regulations is inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum.

The (injunction) application was rejected on the basis that it was only since the requirements of the Procedures Directive, and, in particular, the deeming provision of its Annex 1, became effective in Irish law (in 2007) that the recommendation of the Commissioner fell to be considered as the first instance determination by a “determining authority” with an appeal to the Refugee Appeals Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it is only because of the manner in which the State has adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive for asylum (refugee) applications pursuant to Article 3.1. Furthermore, without a unified system for both applications the minimum procedural standards provide for in the Procedures Directive do not apply to a separate and discrete subsidiary protection application.

In relation to the ‘co-operation’ point the Court found that a claim of non-compliance with such a duty of “co-operation” or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts. The applicant in this case eschewed the need to identify any particular finding in the Subsidiary Protection determination which might have been corrected or altered had the applicant been consulted upon it.

Unlike the Procedures Directive, Article 4.1 of the Qualifications Directive refers to the duty of co-operation in respect of the “application for international protection,” that is, the claim to asylum and the claim to subsidiary protection. Article 14.2 of the Procedures Directive recognises, however, that the report of the personal interview with the applicant on which the decision of the determining authority on an asylum application is based, may be communicated to the asylum seeker after the decision has been adopted. The Court found that it would be inconsistent with these arrangements that the duty of cooperation in Article 4.1 should be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision in relation to a subsidiary protection application to an applicant for prior comment. Furthermore, the duty to co-operate provided for in Article 4.1only applies to those elements of the claim described in Article 4.2. These are, in effect, the basic facts and documents relating to the applicant’s personal history and to the basis of the claim and they are primarily considered and assessed in the asylum process including any appeal.

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.

The standards of proof for the assessment of possible future persecution are identical for both the refugee status determination procedure and for the revocation procedure (change of legal opinion, following Federal Administrative Court, decisions of 1 June 2011,10 B 10.10 and 10 C 25.10). The question of whether a change of circumstances in a country of origin is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded can only be answered after an individual assessment.

The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.

An applicant from Somalia was eligible for refugee status. The court found:

1. 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.
2. Clan membership constitutes a particular social group.
3. Protection against persecution is not provided by the State, by parties or by other organisations in Somalia.
4. There is no internal protection in Somalia.

The applicant, from Iran, had not been politically active in Iran but participated in demonstrations in Sweden and appeared with his photo on dissident websites and TV. The applicant was considered to have been engaged in low-level political activity. Thus, he was deemed not to be of interest to the Iranian authorities and was therefore not considered to be a refugee or in need of subsidiary protection on “sur place” grounds.

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.

If an applicant has serious criticism of a language test conducted to determine their country of origin, the Migration Board must investigate the grounds before making a decision, or at least respond to the applicant's criticism so that the submission can be completed.

If the Migration Court considers a language test report to be unreliable or inadequate, it can decide to request a new language analysis or return the case to the Migration Board for further investigation, but cannot choose to ignore the analysis entirely.

During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.

There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.