Case summaries

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.

The Office of Immigration and Nationality (OIN) rejected an application for asylum and did not assess the risk of serious harm because the applicant was deemed not credible. The Metropolitan Court found this decision unlawful and ordered that the risk of serious harm be analysed in a new procedure. Furthermore, the Metropolitan Court found the assessment of non-refoulement unlawful, since all the available country information assessed concerned Serbia, however, the applicant's country of origin was Kosovo.

The case concerned an appeal before the Supreme Court lodged by the Attorney General against the decision of the High National Court to grant refugee status. Status was granted to a Moroccan army deserter on the basis of a well founded fear of persecution on the grounds of political opinion. At issue on appeal was whether refugee status was granted based upon a fear of persecution resulting from the army desertion (which took place in Morocco), or due to the imputed political opinions that had arisen since his desertion (which arose in Spain): i.e. whether the applicant was a refugee sur place.

Subsidiary protection can be granted if on return to their country of origin an applicant would face a real risk of torture, inhuman or degrading treatment or punishment. The question at issue was whether the reasons for such ill-treatment related to Refugee Convention persecution grounds or not. All international protection statuses require an individual threat, which cannot be indirect as the risk assessment is a future oriented examination of the possibility of a threat, along with the applicant’s individual circumstances and the probabilities of risk.

The High Administrative Court decided that refugee status had been unlawfully granted to a Chechen. Regardless of the issue of whether Chechens were persecuted as a group, refugee status was excluded since the applicant had access to internal protection in other parts of the Russian Federation.

The Kenyan applicant was a potential victim of female genital mutilation (FGM) and she faced forced marriage upon return. The Court stated that even if there was a risk of persecution in case of a return to the country of origin, the applicant could reasonably be expected to relocate internally as it was feasible in the circumstances.

The Ministry of Interior rejected the asylum claim of an Algerian woman who requested protection based on gender persecution by a non-state agent. The High National Court, on appeal, ruled that gender is considered as a “particular social group” and that it is not necessary that the persecution is carried out by state actors but also by non-state actors under certain circumstances. The applicant was granted Refugee status.

The Supreme Court held, in light of a UNHCR Report concerning Colombian asylum seekers, that the burden of proof had been reversed; the High National Court had to establish that the Colombian authorities could effectively protect the applicant from the agents of persecution.

This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established.  When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity. 

If a subsequent application is based on “post-flight reasons” created by the applicant, he has to provide good reasons why he has become politically active or has intensified his activities.

As a rule, “post-flight reasons” which have been created by the applicant following the termination of an asylum procedure are not relevant for granting refugee status. An exception to this rule may be given if the activities which the applicant engaged in since he left the country of origin constitute a continuation of convictions which have been practiced before. However, activities which fulfil these criteria are not by themselves sufficient to constitute an exception to the rule. In addition the applicant has to provide good reasons to explain why he has become politically active or has intensified his activities after an unsuccessful earlier asylum application.