Case summaries

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.

The Administrative Court considered the proposed removal of the applicant from the UK to Italy under the Dublin Regulation. In applying MSS v Belgium and Greece and KRS v UK to applications to resist removal under the Dublin Regulation on human rights grounds, a system which protects the rights of asylum seekers should be presumed in other EU member states. The evidence must reveal a systemic failure on a significant scale for the presumption to be rebutted.  Particular weight would be given to the public statements of UNHCR and other intergovernmental bodies with appropriate mandates.  Little or no weight would usually be given to expert reports in such cases.

When establishing the necessary “density of danger” in an internal armed conflict within the meaning of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive, it is not sufficient to quantitatively determine the number of victims in the conflict. It is necessary to carry out an “evaluating overview” of the situation, which takes into account the situation of the health system. However, this issue was not decisive in the present case, as the applicant would only face a low risk of being seriously harmed.

Appeal against the General Secretary of the Ministry of Public Order's negative decision no 95/52986 of 28.4.2006 on a claim for asylum before the Appeal Committees formed pursuant to Articles 26 & 32 of Presidential Decree 114/2010 and the Minister of Citizen Protection's decision 5401/3-505533 of 7.11.2011 (385/8-11-2011 FEK YODD) pursuant to which the present Committee was formed.

This case involved a fear of persecution because of religious beliefs (atheism) as well as because of membership of a particular social group (personality shaped in a non-Islamic society / westernisation). In particular, the Committee ruled that if the Applicant were to return to Afghanistan now or in the near future, because of his atheism and the consequent non-conformity with the Islamic way of life of the society into which he would need to integrate, in conjunction with the fact that his personality has been shaped in a non-Islamic society with customs and a way of life totally different from those of Muslims, he would be reasonably likely to suffer aggressive social attitudes, threats and social exclusion which, taken cumulatively, could amount to persecution. Besides, should he return to a small rural community in Afghanistan – given the Applicant's particular personality and how it had been shaped – it is very likely that he would not be able to conceal his religious beliefs (atheism) and thus there was a reasonable chance that he would be at risk of criminal prosecution because of his atheism and his 'apostasy' from Islam (prosecution which is reasonably likely to lead to imprisonment or execution). This, however, would constitute a direct and severe violation of his fundamental right to religious freedom, especially in the context of the specific social, religious and political unrest and the absence of legal guarantees in the Applicant's country of origin.

It was held that even if he were not criminally prosecuted, the Applicant would, in any case, be at risk of suffering harm from non-state actors in the form of persecution; and that the Afghan State, police and other authorities were incapable of providing adequate and effective protection, mainly because of the lack of organisation and the corruption which prevails at all levels.

The refusal to grant a right of residence to a third-country national who is a family member of a Union citizen must not lead in fact to the obligation for the latter to leave the territory not only of the Member State of which he is a national but also that of the Union as a whole.

In assessing a claim for asylum, the Tribunal erred in concluding that the discrimination likely to be faced by the minor applicant (as an Ashkali) in receiving an education in Serbia did not rise to the level of persecution, particularly given the importance of the right to education in availing of other human rights.

When refusing a claim for asylum the decision-maker must establish beyond reasonable doubt that the applicant's fear is not well founded.

The Supreme Administrative Court considered the application of the internal protection principle. The Court held inter alia that effective protection cannot be provided by non-governmental organisations which do not control the state or a substantial part of its territory.  

M’s detention pending deportation, for over 2 years and 8 months, was processed without sufficient safeguards against arbitrariness and delay, resulting in four separate violations of the Convention.

Subsidiary protection was granted to the applicant due to the lack of his family ties in Afghanistan on the basis of the risk of serious harm (torture and inhuman treatment).