Case summaries

This appeal challenged a negative decision of the Ministry of Interior to refuse family refugee status extension to the applicants whose son was granted refugee status in 2006.

This case concerned the consideration of expert medical evidence by asylum decision makers and the link with the assessment of credibility. The Court found that the Refugee Appeals Tribunal failed adequately to consider strong medical evidence relating to torture in assessing the overall credibility of the applicant’s refugee claim. The Court also found that it is incumbent upon the asylum decision maker to give reasons for rejecting the contents of medico-legal reports, especially those with a high probative value.

After the applicant absconded the time frame for a deportation was extended by 18 months and, therefore, Poland’s original acceptance was still valid at the time of the second application. Art 7 Dublin II Regulation is not applicable because the applicant’s family life was established after his first application for asylum. There is no violation of Art 8 ECHR because the applicant’s family life was formed at a moment when the applicant did not know whether he would be able to maintain it.

In the event of an exclusion order, the Reception Conditions Directive (2003/9/EC) does not apply.

The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.

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.