Case summaries

In countries where there is a high prevalence of female genital mutilation (FGM), as in Nigeria, non-excised persons can be considered as having a well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention. Refugee status can be granted where there is a considerable risk of excision and insufficient protection against this threat.

The Immigration and Asylum Office unlawfully rejected the claimant’s application for international protection. The court found that the authorities did not objectively assess the evidence and country information provided by the claimant, a Coptic Christian from Egypt. They also failed to correctly interpret the definition of a refugee in accordance with international law and disregarded the special status of the claimant who was an underage applicant.

The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.

The Defendant faced two charges, that of a ‘prohibited immigrant’ and of illegally entering the Republic of Cyprus, whilst at the same time he had applied for asylum. With the aid of effective legal representation, he was found not guilty on both charges. 

The French National Asylum Court (CNDA) must do a complete assessment of facts and circumstances in deciding whether an applicant should be granted refugee status, or failing that, subsidiary protection. In doing so, it must take into account all the documentation provided by the Applicant in support of the application. In this case, the Applicant’s medical evidence documentation and the evidence relating to the potential risks she is likely to face if she returns to her country (fear of persecution due to imputed political opinions) should have been taken into account.

The CNDA did not consider that evidence and did not include it in its decision.

The Court of Appeal rejected a request rebutting the presumption of Turkey as a safe third country for a Syrian national of Armenian origin who resided there for one year and held a work permit, on the ground that general references to human rights violations and deficiencies in Turkey’s asylum system did not suffice to establish a real and individualised risk of persecution or indirect refoulement to Syria.

The decision of denying asylum is disproportionate, as the fact that the acts of persecution are indiscriminate and affect a large majority of the population do not exclude the application of the 1951 Convention when the necessary elements of the provision are present. The reports of UNHCR were also noted in the Court’s assessment, particularly regarding the risk groups that the organisation has characterised.

The presence of laws criminalising homosexuality does not amount to persecution within the meaning of article 9, Directive 2011/95/EU when there is no real risk for gay men to be prosecuted on the basis of these laws. A gay man in Algeria may reasonably be expected to relocate within the country in order to avoid persecution from his family members, and to conceal his sexual identity so as to conform to societal pressures falling short of acts of persecution.

When addressing asylum claims, refugee status must be recognised when there is a well-founded fear of persecution for any of the reasons foreseen in the 1951 Refugee Convention. Assessment of an asylum request fundamentally needs careful consideration of the facts and personal circumstances of the asylum seeker, as well as an analysis of the nature of the risk. The criteria of this test does not have to be restrictive, it is sufficient that the competent authority has a rational belief that the requirements are met for the purpose of receiving refugee status.

A person, with a well-founded fear, within the meaning of the Geneva Convention, of being harmed by their family if they return to their country of origin because they are a member of a particular social group and are unable to rely on effective protection from the state, may be entitled to claim refugee status.