Case summaries

The Court granted permission to the Applicants to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African one-parent family. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ and the appeal decision was based on personal credibility and the absence of a nexus to Convention grounds. The Applicants failed in their argument that the absence of an oral hearing may render the appeal decision unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive, because the Applicants had in fact availed of the appeal rather than challenge the fact that it was confined to a written appeal. Leave to seek judicial review was granted on the basis that an aspect of the claim which was disclosed after the first instance decision was not properly considered; that the decision maker made exaggerated credibility findings to the potential detriment of a subsequent subsidiary protection application; and erred in the consideration of country of origin information and evidence of the availability of internal protection.

This case concerns whether there is an armed conflict in Iraq which meets the threshold of indiscriminate violence set out in Article 15(c) Qualification Directive, such that all applicants from Iraq require subsidiary protection.

The concept of a local conflict as referred to in Article 14 of Legislative Decree 251/2007 c) and which is a sufficient reason for granting subsidiary protection should not be understood as applying only to civil war. It should cover all circumstances where conflicts or outbreaks of violence, whatever their origins, between opposing groups or various factions appear to have become permanent and ongoing and widespread, not under the control of the state apparatus or actually benefiting from cultural and political ties with this apparatus.

The situation in Somalia, in particular in the South and Central regions, should be regarded as a situation of generalised violence resulting from an internal armed conflict.  

The case refers to an appeal to the Supreme Court brought by the appellant against the High National Court’s decision to reject the appellant’s administrative appeal against the denial of his application for refugee status. 

The appellant is a Columbian national and claims to fear political persecution if he is returned to his country because of threats from the FARC group (Revolutionary Armed Forces of Columbia) due to the appellant’s refusal to permit two of his sons to join the armed group.

 The Supreme Court rejects the appeal, affirming the High National Court’s decision to deny asylum.Furthermore, the Supreme Court rejects the appeal for protection on the grounds of humanitarian considerations as contained in Spanish Law.   

It is expected and necessary that persons fearing persecution should fully and continuously cooperate with the authorities handling their case.

Since the life, basic safety and livelihood chances of people are involved, based on the above described amount and nature of danger (in such cases naturally the actual danger need not and cannot be undoubtedly proved) the very likely occurrence of persecution, harm or other significant detriment cannot be risked.

In relation to the internal protection alternative, the Applicant must have family or kinship ties, or his/her basic livelihood and accommodation must be provided by other means in a certain part of the country.

Instead of rejecting the application, the Court granted subsidiary protection status to the single female Applicant and her minor children, as their return to the country of origin would lead to the risk of serious harm (indiscriminate violence).

There is not currently an indiscriminate conflict in Afghanistan (as a whole, or in any province) within the meaning of Article 15(c). Internal protection is in general possible in Kabul; however it is unreasonable to expect certain categories of women to seek internal protection within Afghanistan.

The Afghan applicant was granted subsidiary protection status during the court proceedings. The authority must make sure that the applicant is not at risk of serious harm or persecution in the relevant part of the country, not only at the time the application is assessed but also that this is not likely to occur in the future either. Countries struggling with armed conflicts do not normally provide safe internal flight options within the country, as the movement of front lines can put areas at risk that were previously considered safe.

The High Court held that the Minister is entitled in a subsidiary protection application to rely on the findings made during the refugee status determination process unless these findings are legally wrong or the reasoning is defective. The Applicant cannot “collaterally attack” the findings of the Refugee Appeals Tribunal (RAT) (which have not otherwise been challenged) through a judicial review of the subsidiary protection decision. The lapse of time amounting to almost one year between the oral hearing by the RAT and the issuing of its decision, could not be challenged in the context of seeking to review the subsequent subsidiary protection decision, and the reliance by the Minister on the RAT’s use of an expert medical report was permissible.