Case summaries

These joined cases concerned two Applicants who were denied protection in Germany on the basis of the exclusion provisions in the Qualification Directive.  Upon appeal the German Courts found that even if they were excluded under the Qualification Directive they may still entitled to the right of asylum recognised under Article 16A of the Grundgesetz. The CJEU, in examining Article 12, the exclusion provision in the Qualification Directive, found that the fact a person was a member of an organisation which is on the EU Common Position List 2001/931/CFSP due to its involvement in terrorist acts, does not automatically constitute a serious reason to exclude that person. Exclusion is not conditional on the person concerned representing a present danger to the host Member State or on an assessment of proportionality.

The Migration Board accepted the applicant and her children were in need of international protection as refugees in relation to Senegal but claimed that they could obtain protection in Nigeria (considered a safe third country). The Migration Court upheld the applicant’s appeal stating that once a case has been examined in substance in relation to a country of origin and protection needs ascertained it is not possible subsequently to refuse protection by referring to a safe third country. Cases concerning safe third countries must be dismissed in accordance with Art 25.2(c) of the Asylum Procedures Directive which is transposed into Swedish law by the Aliens Act (2005:716) Chapter 5 Section 1 (b).

The applicant sought asylum in Spain claiming to have suffered persecution in Bangladesh on the grounds of membership of a group (the Beharies) determined by its ethnic identity. This persecution intensified when the war with Pakistan broke out. The Ministry of Interior refused the application which was appealed by the applicant to the High National Court. This court examined if persecution under the 1951 Refugee Convention could be established, beyond a case of discrimination.

The situation of generalised violence resulting from a situation of internal armed conflict ended after the victory of the Sri Lankan army over the LTTE in May 2009. Furthermore, the fact that the applicant belonged to the Tamil community was not sufficient to justify his fears of persecution considering the situation which prevails in Sri Lanka, which cannot be seen as characterising a situation in which the destruction of a specific ethnic group is pursued, since the civilians of Tamil origin are not targeted for persecution by the governmental authorities solely for reason of their ethnic origin.

This decision concerns an appeal lodged before the Supreme Court against the decision of the High National Court, confirming the Ministry of Interior’s decision to revoke the refugee status of the appellant and her children. This revocation was issued following the voluntary return of the applicant’s husband to Colombia, his country of origin.

This case concerned the concept of “particular social group." The CALL held that persons of the same sex can, in certain societies, be considered as a “particular social group.” The applicant, a victim of forced prostitution, was granted international protection on the basis of her belonging to the social group of women.

This appeal challenged a negative decision of the Ministry of Interior to refuse family refugee status extension to the applicants whose son was granted refugee status in 2006.

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.