Case summaries

The case concerned an appeal before the Supreme Court lodged by the Attorney General against the decision of the High National Court to grant refugee status. Status was granted to a Moroccan army deserter on the basis of a well founded fear of persecution on the grounds of political opinion. At issue on appeal was whether refugee status was granted based upon a fear of persecution resulting from the army desertion (which took place in Morocco), or due to the imputed political opinions that had arisen since his desertion (which arose in Spain): i.e. whether the applicant was a refugee sur place.

The case concerned an appeal submitted before the Supreme Court against the decision of the High National Court to refuse refugee status on the grounds that it was not established that the persecution alleged against the applicants was individually and personally targeted. The Supreme Court found that the High National Court erred in requiring a higher standard of proof than what was needed. The High National Court had required the applicant to demonstrate ‘conclusive evidence’ (“full evidence”) of persecution, however, a lower standard of evidence was required by the law.

The appellants argued that they were at risk of re-trafficking and would not find protection anywhere in Albania. The tribunal agreed, and laid down country guidance on the risks facing trafficked women and the absence of effective protection from these risks.

This case concerned the right to apply for asylum and seek an effective judicial remedy where the applicants had not reached Spanish territory (by land or sea). The Spanish Commission for Refugee Assistance (CEAR) lodged an appeal before the Supreme Court against a decision of the High National Court. CEAR alleged that the applicants’ right to seek asylum and the right to effective judicial protection had been violated. The Supreme Court held that the applicants could not exercise those rights as they had not arrived on Spanish territory.

This case concerns exclusion from refugee status due to the alleged participation of a civilian in war crimes. It was found that an act committed by a civilian can be a war crime if this act is connected to an armed conflict. In the course of an internal armed conflict, war crimes can be directed not only against the civilian population but also against combatants of the opposing party.

This case concerned a decision of the Office of the Refugee Applications Commissioner (ORAC) to refuse to recommend refugee status on grounds of credibility. The refusal contained a finding which allowed an appeal on the papers only. The applicant sought to have this decision set aside by the High Court on the basis that an appeal without an oral hearing was insufficient as the report depended on a finding of a lack of credibility and thus required oral testimony to rebut this.

This case concerned the treatment of evidence from unaccompanied minors. The applicant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis of a fear of persecution both by the Taliban and the Afghan government. The Refugee Appeals Tribunal refused his refugee appeal on the grounds that the applicant was not credible and that his claim was not objectively well-founded. The Court found that the Tribunal Member had engaged in impermissible speculation and conjecture in relation to the applicant’s prospect of State protection in Afghanistan, that the Tribunal Member had imputed expectations to the applicant without any consideration of the applicant’s level of maturity at the time, and that the Tribunal Member had failed to consider whether the applicant’s fears in relation to the Taliban were realistic having regard to his age, maturity and the particular circumstances in Northern Afghanistan.

1. Refugee status was recognised because of a risk of persecution in case of return to Vietnam due to “exposed” political activities in exile.
2. Recognition as a refugee was not excluded by Section 28 (2) of the Asylum Procedure Act. Contrary to the case law of the Federal Administrative Court, political activities in exile do not constitute “circumstances which the applicant has created by his own decision”  within the meaning of Art. 5.3 of the Qualification Directive , but fall under Art. 5.2. Therefore, Member States have no competence to regulate the meaning of such "activities" by applying Art 5.3. This is also demonstrated in the differentiation in Art. 4.3 (c) and (d). Art. 5 (2) of the Qualification Directive which essentially corresponds with the new Section 28 (1a) of the Asylum Procedure Act, although the term "activities" has not been adopted in the latter provision.

The CALL ruled that when a Palestinian refugee, who is under the care of United Nations Relief and Works Agency (UNWRA), resides outside the mandate areas of UNWRA, then this person no longer benefits from the protection of UNWRA and therefore falls under Art 1D(2) of the 1951 Refugee Convention, meaning that this person has an automatic right to the protection of the Convention. It should however be examined whether the person can return to the mandate areas and place him/herself back under the protection of UNWRA.

For the purposes of access to legal cover for persons applying for international protection, documents issued by the Italian police certifying a person’s identity (residence permit) should be considered as being valid and wholly sufficient to identify the foreigner and, in consequence, to provide legal aid at the State’s expense, regardless of the precise particulars in the country of origin.