Case summaries

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.

The situation in Logar province in Afghanistan can be characterised as an internal armed conflict. Therefore, the applicant as a member of the civilian population is at a significant risk in terms of Art 15 (c) of the Qualification Directive.

This case concerned the appropriate manner in which an application for subsidiary protection is to be decided where there may be at least an implicit claim of a “serious and individual threat” to the applicant by reason of indiscriminate violence. The Court found that Article 15(c) of the Directive does not impose a free-standing obligation on the Minister to investigate a possible armed conflict situation, it is for the applicant to make this claim and to make submissions and offer evidence establishing that he is from a place where there is a situation of international of internal armed conflict, and that he is at risk of serious harm by reason of indiscriminate violence.

Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) (which provides protection in the Netherlands against a potential breach of Article 3 of the European Convention on Human Rights) provides for the same protection as Article 15(c) of the Qualification Directive. The latter article therefore does not amend the law.

Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) (which provides protection in the Netherlands against a potential breach of Article 3 of the European Convention on Human Rights) provides for the same protection as Article 15(c) of the Qualification Directive. The latter article therefore does not amend the law.