Case summaries
Country of origin information can verify a situation in which the risk of persecution can exceptionally be considered to be proved without substantiating the personal circumstances of the applicant. The danger of the harm is real, and complies with the requirements of subsidiary protection.
The applicant’s claim for refugee status was rejected as Convention grounds were not established, however, subsidiary protection was granted in the alternative by the court on the basis of grave human rights violations and the prohibition of torture (Art 3 of the European Convention on Human Rights (ECHR)).
The court accepted the argument that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act)
The Court considered how to assess whether an applicant’s activities for insurgent groups in Afghanistan could constitute terrorism. It further considered whether attacks upon United Nations Security Council mandated forces, such as ISAF in Afghanistan, were acts contrary to the purposes and principles of the United Nations, justifying exclusion from the 1951 Refugee Convention under Article 1F(c).
A transfer to Greece within the framework of the Dublin Regulation was stopped due to the conditions for asylum seekers in the country.
When medico-legal evidence of torture is provided by specialists and found credible it is incumbent on the Migration Board to put forward evidence that there is no further risk of torture in the relevant country.
For conversion to be considered an acceptable protection ground the religious belief must be genuine.
Converts to Christianity in Afghanistan face a general risk of persecution and inhuman or degrading treatment or punishment on return. However, the Migration Court of Appeal found that an Afghan applicant did not prove it was reasonably likely that his conversion from Islam to Christianity was founded on a genuine belief. He had not shown that if he returned to his country of origin he had the intention to live as a convert. There was also no evidence that the authorities in his country of origin knew that he had converted.
In assessing state protection, a judge must look, notwithstanding a general sufficiency of protection in a country, to the individual circumstances of the applicant. In assessing whether an appellant’s individual circumstances give rise to a need for additional protection, account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. When considering whether past persecution is a serious indication of a well founded fear under Article 4(4) of the Qualification Directive, Recital 27 to the Directive indicated that the past ill treatment of family members was also relevant.
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.
This applicant in this case was HIV positive. He was receiving treatment in Ireland while he was an asylum-seeker. Challenging a deportation order made against him, he claimed that he would be exposed to serious discrimination and stigmatisation in Nigeria and would have difficulty accessing treatment in public hospitals because of discriminatory attitudes of medical staff towards persons with HIV/AIDS.
The Court held that an inferior standard of medical treatment resulting from discriminatory attitudes towards a particular social group does not amount to persecution for a 1951 Refugee Convention reason unless it was associated with an unwillingness or inability on the part of the relevant authorities to protect members of the group from such ill-treatment.
The Court also found that it is only in exceptional cases that stigmatisation and discrimination on the part of even a large number of individuals constituted ill-treatment which comes within the scope of the prohibition in section 5 of the Refugee Act 1996 or the protection of Art 3 of the European Convention on Human Rights and probably would require a minimum level of severity and clear evidence that the ill-treatment was so endemic and institutionalised as to raise a presumption that it was official policy or condoned by state authorities.