Case summaries

The existence of a risk of persecution in the country of origin should be assessed on the basis of information concerning the country of origin rather than on the basis of the credibility of the asylum seeker.

The group of “Iraqi citizens who cooperate with the coalition forces” in Iraq is not to be characterised as a “social group” within the meaning of the Qualification Directive (confirmation of decision of Administrative Court of Karlsruhe of the 16 April 2010, A 10 K 523/08). It cannot be assumed that any kind of cooperation with the coalition forces is an expression of a certain political conviction or that Islamist terrorist organisations would have an understanding of this kind of cooperation.

This case concerns a revocation decision, which turned on the meaning of Art 14.3(b) of the Qualification Directive (in particular the word “decisive” in that Article). The Court relied on an analysis of the French and Italian translations of Art 14.3, which the court felt were not worded as precisely as the English text.

For conversion to be considered an acceptable protection ground the religious belief must be genuine.

Converts to Christianity in Afghanistan face a general risk of persecution and inhuman or degrading treatment or punishment on return. However, the Migration Court of Appeal found that an Afghan applicant did not prove it was reasonably likely that his conversion from Islam to Christianity was founded on a genuine belief. He had not shown that if he returned to his country of origin he had the intention to live as a convert. There was also no evidence that the authorities in his country of origin knew that he had converted.

The applicant informed the authorities in Finland that he was a minor; however, he was registered as an adult in Malta. It was decided that the applicant must clarify and correct the information given to the authorities in Malta with respect to his age. Malta was deemed responsible for examining the applicant’s asylum claim under the Dublin II regulation even though he would have been considered a minor when applying for asylum in Finland.

Refugee status was granted as the applicant was deemed at risk of persecution due to his homosexuality. The court found that homosexuals constitute a particular social group in Cameroon according to Section 60 (1) of the Residence Act / Art 10.1 (d) of the Qualification Directive. According to the Qualification Directive, sexual orientation does not only constitute an unchangeable characteristic, but is so fundamental to the identity of a person that he/she should not be forced to denounce it. That means that under the Qualification Directive it is no longer important if the applicant can persevere with abstinence in the long term. The punishment which the applicant would face due to homosexual acts in case of return does not simply constitute criminal prosecution, but is persecution in terms of Section 60 (1) Residence Act.

In assessing state protection, a judge must look, notwithstanding a general sufficiency of protection in a country, to the individual circumstances of the applicant. In assessing whether an appellant’s individual circumstances give rise to a need for additional protection, account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. When considering whether past persecution is a serious indication of a well founded fear under Article 4(4) of the Qualification Directive, Recital 27 to the Directive indicated that the past ill treatment of family members was also relevant.

The Administrative Court held that the results of language analysis alone, contradicting the applicant’s description of events, cannot be seen as sufficient proof of the applicant’s place of residence if no other facts have been presented to support the result of the language analysis.

Even if it is assumed that an internal armed conflict is taking place, a serious individual risk can only be established if the degree of indiscriminate violence which is characteristic of the conflict has reached such a high level that any civilian is at risk of a serious individual threat simply by his or her presence in the region.

The suicide attacks and bombings typical of Iraq and also of the hometown of the applicants can be classified as acts of indiscriminate violence. However, a density of danger as it is necessary for the assumption of a serious and individual risk cannot be established. Nor do the applicants possess individual characteristics which result in an increased risk for them when compared to other members of the civilian population.

Chechens, who do not have particular characteristics putting them at risk, are not at risk of persecution in the Russian Federation due to their membership of their ethnic group. Therefore it can basically be assumed that other parts of the Russian Federation provide an internal protection alternative.