Case summaries

The Applicant, S.H., is a Bhutanese national of ethnic Nepalese origin who currently lives in Huddersfield. He claimed asylum in the UK, but the application was refused and he was served with removal directions. Prior to his removal, the Court indicated to the United Kingdom Government that he should not be expelled. Relying on Article 3 (prohibition of inhuman or degrading treatment), the Applicant complained that his removal to Bhutan would expose him to a risk of ill-treatment on account of his ethnicity, his status as a failed asylum seeker, and as the close relative of a human rights activist who has been granted asylum in the United Kingdom.

The Tribunal considered whether a woman who had been involved in invasions of white-owned farms at the behest of the ruling party in Zimbabwe was excluded under Article 1F(a) of the 1951 Refugee Convention. The Tribunal held, first of all, that Article 7(1) of the Statute of the International Criminal Court is usually regarded as providing the best working definition of a crime against humanity for the purposes of Article 1F(a) of the 1951 Refugee Convention. Secondly, it held that where the act or crime does not involve the specifically listed forms of acts or crimes, in order to consider that a crime against humanity had occurred, the Tribunal must consider if the acts participated in by the appellant were of a “similar character” to those specified in Article 7(1)(a) to (j) of the Statute. In so doing, the Tribunal must consider the specific purpose of the crime, its intent and effect, the participation of an appellant in the crime and if needs be whether the appellant made a substantial contribution to the crime.

This case concerned the revocation of refugee status as a result of the applicant having been convicted of criminal offences. Although the circumstances which led to the recognition of refugee status have not ceased to exist, the revocation of refugee status was deemed to be lawful, since the applicant was convicted of several criminal offences. It was also found that the corresponding provision of German law was in line with Art 14.4 (b) of the Qualification Directive.

Where the situation described in Art 15(c) of the Qualification Directive does not occur in all parts of the country of origin, it must be assessed in respect of the distinct area of the country from which the applicant originates.

Although gender based persecution is not expressly mentioned among the reasons for recognising refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.

Although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.

The facilitated standard of proof under Art. 4.4 of the Qualification Directive may be applied to the examination of subsidiary protection. Under German law, subsidiary protection is not excluded on the ground that the applicant is a “danger to the community”.

The conditions for applying an exclusion clause can be fulfilled without considering if there are grounds for granting protection. 

The right to family life can outweigh the ‘state responsibility’ criteria in the Dublin II Regulation. The Court held that the application for asylum should be processed in Sweden, in order to secure the right to family and private life (Art 8 of the European Convention on Human Rights), despite the fact that another State was responsible under the Dublin II Regulation.

The applicant lodged an appeal before the High National Court against the decision issued by the Ministry of Interior to refuse granting stateless status. At issue in the case was whether the reasons given by the Ministry were lawful: if the applicant had already received protection from Algeria and if he fell within the scope of the exclusion clause because of the protection already granted by organs of the UN other than UNHCR.

Expulsion by France of two nationals of Belarus whose asylum claims had been rejected would amount to a violation of Article 3.