Case summaries

HIV-related marginalisation and discrimination can reach the threshold of seriousness to establish persecution but is not sufficient to be granted international protection. In order to benefit from international protection, it must be established that there are personal reasons for a well-founded fear of being persecuted due to HIV-contamination. In this context, seropositivity can be regarded as being part of a social group, which is a valid persecution ground.  In the case at hand, the Court took into account aspects of vulnerability which are unrelated to HIV-status.

When national administrations assess a request for international protection, they must take more precautions when investigating the credibility of facts from the applicant’s story in case of post-traumatic stress and female genital mutilation.

The authorities must comply with their duties to cooperate with the applicant in establishing the relevant facts of the case by being cautious and meticulous before concluding that certain contradictions and inaccuracies exist.

The Iranian applicants’ asylum claim was rejected by the authorities as they were not found credible. As a result of this finding, the authorities did not consider their account in light of the country of origin information on Iran. The court quashed the decision and granted refugee status to the family reasoning that the authorities are obliged to carry out a thorough and complete fact assessment.

It was found that the contradictions in the applicants' account were not relevant from the point of view of international protection. The court also ruled that the authority is obliged to clarify misunderstandings at hearings, at the same time applicants have to be given the opportunity to justify contradictions and incoherencies in their statements.

1. In principle, a threat of female genital mutilation (FGM) has to be considered as political persecution according to Section 60 (1) Residence Act.
2. In Nigeria, FGM is still widespread in all known forms. For the Edo ethnic group, it is usually performed between seven and fourteen days after birth.
3. The number of circumcisions performed (among the Edo ethnic group) during puberty has decreased significantly in recent years and circumcisions in adulthood are no longer performed, or they are only carried out in a small number of cases.

In the present case the court found that it was unlikely that the applicant was at risk of FGM considering her age (five years) and the fact that both her parents opposed the practice. Further, the requirements of ‘Prohibition of deportation’ (Section 60 (2) through (7) of the Residence Act) were not established; it was considered unlikely that the applicant would actually return to Nigeria as her mother had residency in Germany.

The Office of Immigration and Nationality (OIN) rejected an application for asylum and did not assess the risk of serious harm because the applicant was deemed not credible. The Metropolitan Court found this decision unlawful and ordered that the risk of serious harm be analysed in a new procedure. Furthermore, the Metropolitan Court found the assessment of non-refoulement unlawful, since all the available country information assessed concerned Serbia, however, the applicant's country of origin was Kosovo.

A single woman from Nigeria (Urhobo) was eligible for protection from deportation under Section 60 (7) sentence (1) of the Residence Act due to a threat of female genital mutilation (FGM) and forced marriage. The economic and social situation in Nigeria is difficult and tense even for the vast majority of the population. The situation is much worse for single women as women in Nigeria are exposed to multiple discrimination. To a large extent they are under legal incapacity, so that in practice they are only in a position to protect their own interests if they are supported by their family.

A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:

1. State protection doesn’t exist against ‘honour killings’ in Lebanon.
2. Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
3. Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).

This case concerned the test to be applied by the Minister as the decision-maker in applications for subsidiary protection. The Court held that it was permissible for the Minister to have regard to the reports and findings of other decision-makers in the asylum process (specifically the Refugee Appeals Tribunal). However, a particularly careful and thorough analysis will be required if the case for subsidiary protection is put on an entirely new basis which has never been considered at any stage of the process. In relation to state protection, the Court reiterated that the onus lies on an applicant to provide clear and convincing proof of a state’s inability to protect its citizens.