Case summaries
The case is a referral back to the CNDA from the Council of State in no. 350661 where the Council had found the CNDA to have erred in law in a previous appeal (no. 10012810) by finding that Nigerian women, who were victims of human trafficking networks and who had actively sought to escape the network, constituted a social group within the meaning of the 1951 Refugee Convention. The CNDA found that victims of trafficking from the Edo State do, indeed, share a common background and distinct identity which falls within the definition of a particular social group. The applicant was given refugee status.
The judgment concerns the status of military deserters under the Qualification Directive (2004/83/EC) and the definition to be accorded to persecutory acts following on from a refusal to perform military service. Whilst the definition of military service is to include support staff the CJEU has held that there must be a sufficient link between the asylum seeker’s actions and the preparation or eventual commission of war crimes.
The individual must establish with sufficient plausibility that his unit is highly likely to commit war crimes and that there exists a body of evidence capable of credibly establishing that the specific military service will commit war crimes. Moreover, desertion is the only way to avoid participation in war crimes and disproportionate and discriminatory acts should be assessed in light of a State’s domestic prerogatives.
The Supreme Court held that the National High Court of Spain (Audiencia Nacional) erred in annulling the General Deputy Director of Asylum’s decision to reject the Appellant’s request for international protection because the National High Court of Spain failed to consider the substance of the Appellant’s request for asylum.
The Supreme Court declared that the National High Court erred when annulling the decision of the General Sub-Directorate for Asylum (Ministry of Interior) to reject the Appellant’s request for international protection. The National High Court annulled the decision but did not consider the Appellant’s core claim: the request for international protection.
As the National High Court was in possession of all necessary facts required to decide on the substance of the request by the Appellant for international protection, it should have been able to determine as such. As a result, the Supreme Court upheld the appeal.
The case concerns an appeal of an Algerian woman to the Council of State, against a decision taken on the 17 June 2013 by the National Court of Asylum (CNDA), who rejected the appeal against the Office for the Protection of Refugees and Stateless Person’s (OFPRA) decision concerning the applicant’s application for asylum.
The Council of State annulled the decision of the CNDA, stating that before finding the existence of a reasonable possibility for the applicant to find internal protection in another region of her country of origin, the Court should have looked into which part of the Algerian territory the applicant could, in all safety, access, settle, exist and lead a normal family life without the fear of being persecuted or being exposed to the risk of serious violence from her ex-husband.
When verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter of Fundamental Rights.
The evaluation of an asylum application should not be based on stereotyped notions and should include an individualised assessment taking into account the applicant’s personal circumstances, vulnerability in particular.
Not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility.
Interventions from third parties to proceedings initiated before the National Asylum Court may be admitted.
A person with refugee status in one European Union state who applies for refugee status in a second European Union state is presumed to have unfounded fears relating to lack of protection. However, that presumption may be rebutted by evidence to the contrary.
LGBTI asylum seekers (1) may be members of particular social group, (2) cannot be expected to conceal or restrain their expression of sexual orientation to reduce risk of persecution. (3) All criminalisation does not per se amount to persecution, but imprisonment actually applied does.
The Applicant's claims that he would be in danger in Syria because of the civil war there were accepted, because he was a Christian and is considered an enemy by both sides and because he left his country illegally and applied for international protection. The Applicant's fear of being killed as a non-combatant in the civil war was considered to be well-founded. It was considered that there was a reasonable chance that he would be arrested and mistreated since the Syrian state would perceive him to have political beliefs since he had lived abroad and would be considered to be opposed to the regime. Internal relocation of the Applicant was not possible because if the Applicant were to return to any region of Syria he would be at risk of suffering serious harm because of the indiscriminate violence and also because the actor of persecution was national/governmental. The Applicant was recognised as a refugee.
The ban on the introduction of new matters in appeal proceedings as stipulated in the Asylum Act does not violate the right of access to the courts contained in the Charter of Fundamental Rights of the European Union as it represents a proportional restriction.