Case summaries
The current situation in the province of Kabul cannot be seen as a situation of indiscriminate generalised violence, within the meaning of Article L.712-1 c) of Ceseda [which transposes Article 15 (c) of the Qualification Directive].
The High Administrative Court wrongly found that returnees without a family network generally could not return to Kabul as an internal protection alternative. The High Administrative Court was obliged to examine whether the applicant was the owner of property which might enable him to safeguard his means of existence upon return.
The applicant claimed asylum in 2006 (along with her children) alleging a well founded fear of persecution on the grounds of political opinion. The application was refused in the initial procedure and on appeal. She returned to Colombia and two years later, returned to Spain and reapplied for asylum and was again refused. She lodged an appeal before the Supreme Court and was granted subsidiary protection.
The Helsinki Administrative Court found that a female minor from a town near Mogadishu was in need of subsidiary protection. The Court held that to return home the applicant would have to travel via Mogadishu which would place her at serious and personal risk due to the nature of the armed conflict.
This case concerns the criteria for determining a serious individual threat and the necessary level of indiscriminate violence in an internal armed conflict.In order for Art 15 (c) of the Qualification Directive to apply, it is necessary to determine the level of indiscriminate violence in the territory of an internal armed conflict. When determining the necessary level of indiscriminate violence, not only acts which contravene international law, but any acts of violence which put life and limb of civilians at risk, have to be taken into account. In the context of Art 4.4 of the Qualification Directive, an internal nexus must exist between the serious harm (or threats thereof) suffered in the past, and the risk of future harm.
In this case the Court applied the CJEU’s decision in Elgafaji and the UK Court of Appeal’s decision in QD and AH (see separate summary on EDAL) and considered whether UK Immigration Tribunals had jurisdiction to consider Art 15 (c) in cases where removal directions had not been set. The specific issue concerned the risk of indiscriminate violence en route from Mogadishu to a safe area. It further considered and made important obiter comments on the ambit of Art 15 (c).
Threats from terrorists against a person who has worked for the international forces in Iraq do not justify the granting of refugee status. Iraqi citizens who have cooperated with the occupying forces do not form a “social group” within the meaning of the Qualification Directive. However, the applicant is entitled to subsidiary protection since there is an armed conflict in the Nineveh region and because the threats by terrorists experienced in the past constitute individual “risk-enhancing” circumstances.
The revocation of refugee status in the case of a Kurd from Iraq was upheld: Even if one presumes that an internal armed conflict is taking place in the applicant’s home province (Tamim), it cannot be assumed that the indiscriminate violence has reached such a high level that practically any civilian is at risk of a serious and individual threat simply by his or her presence in the region.
The situation which currently prevails in the region of Mosul, as well as in the whole territory of Iraq, can no longer be considered as a situation of armed conflict, within the meaning of Article L.712-1 c) of Ceseda [which transposes Article 15 (c) of the Qualification Directive].
When assessing whether a situation under Art 15(c) of the Qualification Directive exists, consideration is given to the nature and intensity of the violence as a result of the conflict as well as its consequences for the civilian population of Mogadishu.