Case summaries

Article 4(1) of Directive 2004/83 requires the determining authority, under its duty of cooperation, to obtain up-to-date country of origin information and, where relevant, a medico-legal report on the applicant’s mental health; a breach of that duty does not automatically lead to annulment unless it may have affected the outcome.

Under Directive 2005/85, delays in the asylum procedure cannot be justified by legislative changes and, on their own, do not warrant setting aside a decision absent an impact on the outcome.

Article 4(5)(e) of Directive 2004/83 means that a false statement later explained and withdrawn at the first opportunity does not, by itself, undermine the applicant’s general credibility.

In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where  ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him. 

The shifting of the burden of proof according to Article 4 (4) of the Qualification Directive applies if the Applicant refers to previous acts of persecution or threats as an indicator of the well-foundedness of his fear that persecution would resume if he were to return to his home country.

If it is assumed that the individual concerned was under immediate threat of persecution associated with his ethnicity when he left his home country, then the link is not simply with the ethnicity of the individual concerned (Chechen in this case), but also with the enmity generally expressed by the persecuting security forces against this ethnic group and their presumed political convictions.

The applicant sought asylum in Spain claiming to have suffered persecution in Bangladesh on the grounds of membership of a group (the Beharies) determined by its ethnic identity. This persecution intensified when the war with Pakistan broke out. The Ministry of Interior refused the application which was appealed by the applicant to the High National Court. This court examined if persecution under the 1951 Refugee Convention could be established, beyond a case of discrimination.

The Applicant’s fear that he will be forced to fight against persons of the same nationality as part of the compulsory military service may, regarding a particular country of origin and specific nationality, represent a well-founded fear of persecution relevant to asylum.

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 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.

Unlike with subsidiary protection, it is necessary for there to be a causal link between persecution and the grounds for persecution when assessing the conditions for granting asylum. The fact that a conflict between LTTE and governmental armed units affected Tamil civilians does not mean nationality qualifies as a ground of persecution.