Case summaries

This case concerns the criteria for determining a serious individual threat and the necessary level of indiscriminate violence in an internal armed conflict.In order for Art 15 (c) of the Qualification Directive to apply, it is necessary to determine the level of indiscriminate violence in the territory of an internal armed conflict. When determining the necessary level of indiscriminate violence, not only acts which contravene international law, but any acts of violence which put life and limb of civilians at risk, have to be taken into account. In the context of Art 4.4 of the Qualification Directive, an internal nexus must exist between the serious harm (or threats thereof) suffered in the past, and the risk of future harm.

In this case the Court applied the CJEU’s decision in Elgafaji and the UK Court of Appeal’s decision in QD and AH (see separate summary on EDAL) and considered whether UK Immigration Tribunals had jurisdiction to consider Art 15 (c) in cases where removal directions had not been set. The specific issue concerned the risk of indiscriminate violence en route from Mogadishu to a safe area. It further considered and made important obiter comments on the ambit of Art 15 (c).

The accelerated procedure (in this case, applicants from a safe country of origin) guarantees the individual assessment of the applicant’s situation and their right to a remedy with suspensive effect.

Even if an asylum applicant meets the conditions for provding subsidiary protection, he will be excluded from eligibility for subsidiary protection if there are serious grounds for believing that he represents a danger to society or a danger to the Member State in which he is staying.

It follows from the decision of the European Court of Human Rights that signatory states to the Convention (Convention for theProtection of Human Rights and Fundamental Freedoms) are under an obligation not to hand over/deport a person to a country where he might be at risk of treatment which is contrary to Article 3 of the Convention. In the case in question, however, the subject of the judicial review was not the decision to deport the Appellant, but the Respondent’s decision not to grant asylum and not to provide subsidiary protection as requested by the Appellant.

Under Article 2 ECHR there can be no extradition of an individual if a serious risk of the death penalty is established. An applicant’s psychological suffering due to the fear of execution by authorities violates Article 3.

It is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention.

The appellants argued that they were at risk of re-trafficking and would not find protection anywhere in Albania. The tribunal agreed, and laid down country guidance on the risks facing trafficked women and the absence of effective protection from these risks.

An expulsion order in relation to an elderly woman with a deteriorating medical condition gave rise to a real risk of a violation of Art 3 and Art 8 ECHR. In light of this risk, the Asylum Court held that the sovereignty clause in the Dublin Regulation should be applied in combination with Article 15 of the same Regulation, even though the latter was not directly applicable in this case.

Detaining children in a closed centre designed for adults is unlawful and ill-suited to their extreme vulnerability, even though they were accompanied by their mother.

Art 3 and Art 15 Dublin Regulation are only applicable if there exist compelling reasons to believe the receiving country is incapable of welcoming asylum applicants in appropriate conditions or if the applicants can prove that they personally risk being subjected to ill treatment or not benefitting fully from an effective right to asylum. In this case, the applicants had not demonstrated they were personally victims of ill treatment in Poland. Poland was considered to offer sufficient guarantees against deportation and for an effective and impartial asylum procedure.

This case concerned the interpretation of Article 4(4) of the Qualification Directive and the transposing Irish measure, which had added certain wording. The Court noted that the Directive left it open to Member States to introduce more favourable standards so long as they are compatible with the Directive. The Court held that the additional wording merely allowed a decision-maker in a case of compelling reasons, to determine eligibility for subsidiary protection as established without being obliged to be fully satisfied that previous serious harm inflicted upon an applicant runs a risk of being repeated.