Case summaries
The discrepancies between the evidence which the Administration and the asylum Applicant presented to the Council of State created serious doubts about whether the facts invoked by the Applicant to confirm his refugee status were correctly recorded and in general about the lawful examination of the said application in compliance with the procedures stipulated by the provisions of Articles 2(3) and 3(7) of Presidential Decree 61/1999.
An intervention by the French urgent applications judge [juge des référés] on the grounds of urgency is not considered until a decision on a transfer of an asylum applicant under the Dublin Regulation has been made. In this case, the asylum applicant was not yet subject to a transfer decision and there was therefore no particular need for an urgent intervention within the 48-hour period, as provided by article L.521-2 of the French Code on Administrative Justice.
In this case the Court of Appeal considered the interpretation of Art 15 (c) of the Qualification Directive applying the decision of the CJEU in Elgafaji (C-465/07; 17 February, 2009).
This case concerned subsequent applications and previous findings. The CALL ruled that, when deciding on a subsequent application, it is not competent to re-judge issues that have been decided in earlier applications. The CALL confirmed that those issues are final, unless evidence is submitted that is of such a nature that it demonstrates in a certain manner that those earlier decisions would have been different had that evidence been submitted at that time.
The situation which prevails today in Mogadishu must be seen as a situation of generalised violence resulting from a situation of internal armed conflict. Its intensity is sufficient to consider that today the applicant faces a serious, direct and individual threat to his life or person, without being able to prevail himself of any protection.
UK domestic legislation that deemed that EU member states were safe third countries for the purposes of removal under the Dublin Regulation was not, as a matter of course, incompatible with Article 3 ECHR and the Human Rights Act 1998. However, if the applicant could show that his or her rights under Article 3 ECHR would be breached by his or her removal to Greece, a declaration of incompatibility between the legislation and the Human Rights Act would be made, although the Court would be prevented from finding that the removal would breach the applicant’s rights. However, the evidence combined with the ECtHR’s ruling in KRS v. UK was not sufficient to indicate that there was such a risk and, in any event, the applicant could seek the protection of the ECtHR in Greece.
Article 15(c) of the Qualification Directive only offers protection in exceptional circumstances where there is a high level of indiscriminate violence.
It is necessary to distinguish between the legal requirement to register a religious group under the law of the country of origin and enforcing such a registration with reasonable instruments permitted by the law, and the repressive actions of security units or other bodies of public authority towards members of a religious group that represent obvious excesses beyond the sphere of provisions permitted by law and which, at the same time, may, depending on particular circumstances, individually or on a cumulative basis, reach the intensity of persecution.
As soon as one persecution ground (in this case religion) exists and the other conditions for qualifying for refugee status are fulfilled, refugee status must be recognised rather than subsidiary protection, including in a context of generalised violence.