Case summaries
This case concerned the application of the principle of family unity, where the sponsor had been granted asylum and subsequently acquired the nationality of the country of refuge.
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).
Even though the threats did not originate from the political opinions actually held or imputed to the applicant, they have to be considered as persecution for political grounds within the meaning of the 1951 Refugee Convention, as interpreted in light of Article 10.1(e) of the Qualification Directive, considering the nature of the persecutors, their goals and their methods.
Before applying the exclusion clause in a case of complicity in an honour killing, the Court should inquire whether, on the one hand family constraint might have lowered the free will of the applicant and, on the other hand whether his young age might justify that he was more vulnerable to this constraint.
The situation which currently prevails in the region of Mosul, as well as in the whole territory of Iraq, can no longer be considered as a situation of armed conflict, within the meaning of Article L.712-1 c) of Ceseda [which transposes Article 15 (c) of the Qualification Directive].
In the situation which currently prevails in Algeria, while homosexuality is in some ways tolerated by society, as long as it is not explicitly expressed by the behaviour or the clothes, individuals who openly manifest their homosexuality may nevertheless be subjected to intimidation in their social environment and by the security forces. In addition, legislation punishes homosexuals by a prison sentence and a fine.
The protection provided by the 1951 Refugee Convention can only be afforded if it is established that the asylum applicant, for a valid reason linked to one of the grounds listed in Art 1A(2) of this Convention, is unable or unwilling to avail him/herself of the protection of the country(ies) of nationality or, for a stateless person, of the country of habitual residence.
Vendetta constitutes a serious harm falling within the scope of subsidiary protection.
The practices used by the authorities of a given country in order to exclude some citizens, members of a minority, from nationality can be considered as persecution since they are linked to one of the grounds listed in Article 1A(2) of the 1951 Refugee Convention.
The Office of Immigration and Nationality (OIN) found the applicant not credible and therefore did not assess the risk of serious harm. Instead the OIN granted protection against refoulement. The Metropolitan Court ruled that the OIN was obliged to assess conditions for subsidiary protection and serious harm even if the applicant was not found credible.