Case summaries
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.
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 conditions for applying an exclusion clause can be fulfilled without considering if there are grounds for granting protection.
A well-founded fear of persecution may also be based on events that took place after the Applicant left his country of origin (refugee sur place). Sur place evidence refers to circumstances which arose after the Applicant left his country of origin and which are as a rule connected with a change in the situation in the country of origin, but one cannot exclude other events which are closely linked with the person applying for refugee status and which occurred after he left his country of origin.
The current situation in the province of Kabul cannot be seen as a situation of indiscriminate generalised violence, within the meaning of Article L.712-1 c) of Ceseda [which transposes Article 15 (c) of the Qualification Directive].
The time limit of 21 days to lodge a complete asylum application to the Ofpra [in the framework of the regular procedure] is sufficient.
Partial quashing of the list of safe countries of origin: Armenia, Madagascar, Turkey and Mali (women only) removed from the list
Political persecution can also exist when legally adopted criminal sanctions are imposed following standard legal proceedings against someone who has simply expressed political opinions. On the other hand, repressive measures with criminal sanctions against incitement to violence cannot be considered to be persecution.
The applicant claimed asylum in 2006 (along with her children) alleging a well founded fear of persecution on the grounds of political opinion. The application was refused in the initial procedure and on appeal. She returned to Colombia and two years later, returned to Spain and reapplied for asylum and was again refused. She lodged an appeal before the Supreme Court and was granted subsidiary protection.