Case summaries
A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.
Rights violations resulting from a forced marriage, including the use of physical and mental violence, constitute severe violations of basic human rights in terms of Art 9.1 (a) of the Qualification Directive.
The Iranian state is neither able nor willing to protect women against persecution by relatives in case of forced marriage.
For the purposes of Art 1A(2) of the 1951 Refugee Convention a person is “of” or “has” a nationality where it is established that he or she is already of that nationality or he or she is not of that nationality but is entitled to it. The person should not be considered to hold a nationality if he or she only “may” be able to acquire it.
In assessing nationality in claims for refugee status, nationality is a matter for the State in question’s law, constitution and (to a limited extent) practice which should be proved by evidence and decided on, as a matter of fact, by the court deciding the protection claim. In considering whether a person is a national or is entitled to a nationality of a second State, the person must use their “best efforts” to clarify their status. The evidence of the attitude of a State towards a person who is seeking not to be removed to that State may be of very limited relevance.
Plea for an ab initio re-examination of an application for asylum. The Special Committee formed under Article 3(5) of Presidential Decree 61/1999 gave a positive opinion because the Applicant had been involved in political activities in his country, as a Kurd, against the ruling regime; and that activity had increased during his stay in Greece. The application for asylum was rejected by the Minister for Public Order without any specific justification for deviating from the Special Committee's clear opinion. When assessing whether there is evidence that a person seeking recognition as a refugee has a well-founded fear of persecution, the Administration may take account of information regarding the activities of the interested party's close relatives.
This case concerned service of the initial negative decision against an asylum application where the notice was served on the foreign applicant asylum seeker without specifying the language in which the applicant was informed of its content. The court rejected an application for suspensive effect of the decision rejecting the asylum application in view of the pleas used by the applicant – of Palestinian origin – that he left his country for economic reasons, since there is no evidence that there is a risk of persecution should he return to Palestine, nor have any of the conditions for asylum on humanitarian grounds been met. The possible disruption to the lifestyle the applicant has created for himself whilst working in Greece does not constitute a reason to suspend any of the acts which form part of the asylum application examination procedure.
The suppression of the expression of racist opinions in a State does not constitute persecution pursuant to the 1951 Refugee Convention, if actions of this kind are considered justified and proportionate following analysisof the particular circumstances.
It follows from the clear wording of Article 1D of the Refugee Convention that the clause contained therein on exclusion from refugee status applies only to persons who are actually making use of assistance provided by UNRWA (United Nations Relief and Works Agency for Palestine refugees in the Near East), and this must be interpreted strictly, i.e. it cannot also apply to persons who have made use of or might make use of protection or assistance. For the purposes of Article 12(1)(a), sentence one, of the Qualification Directive, according to the Court a person makes use of the protection or assistance of a UN agency other than the UNHCR when such a person is truly makes use of such protection or assistance.
This case concerned exclusion and confirmed that Art 12.2 of the Qualification Directive, should be interpreted so that the determining authority must perform an individual examination of the applicant’s case and assess the individual responsibility according to the objective and subjective criteria, as set out in the judgment of Germany v B and D. In such cases, the burden of proof does not rest with the applicant but on the determining authority.
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.
The Court must inquire into the circumstances which establish a risk of inhuman or degrading treatment fulfilling the requirements of subsidiary protection.