Case summaries

The exclusion ground “serious non-political crime” does not automatically apply to a supporter of the PKK. In contrast, an examination of the individual responsibility has to be carried out in each case.

The lack of measures provided by law ensuring decent material reception conditions to asylum seekers can constitute a serious and manifestly illegal infringement of the right of asylum. The assessment of the serious and manifestly illegal nature of such an infringement must take into account the means which are at the disposal of the relevant administrative authority.

Art 17.4 of the Asylum Procedures Directive guarantees certain rights for minor applicants. This case confirmed that these rights should be known to those involved, so that the rights can be invoked before the court. Further it was confirmed that Art 3:2 of the General Administrative Law Act does not meet this requirement.

The rationale of the decision in HJ (Iran) (see separate summary in this database) applies to cases concerning political opinion. Consequently an individual cannot be expected to modify their political beliefs or deny their opinion in order to avoid persecution. The situation in Zimbabwe was exceptional. At that time, the country guidance held that those who were unable to demonstrate their loyalty to the regime were at risk of persecution. Thus, those with no political beliefs could not be required to profess their loyalty to the regime to avoid persecution and were entitled to refugee status.

The applicant informed the authorities in Finland that he was a minor; however, he was registered as an adult in Malta. It was decided that the applicant must clarify and correct the information given to the authorities in Malta with respect to his age. Malta was deemed responsible for examining the applicant’s asylum claim under the Dublin II regulation even though he would have been considered a minor when applying for asylum in Finland.

In this case the court considered the risk to a refugee of indirect refoulement from a third country. 

The applicant in this case claimed to fear persecution in Nigeria on account of his sexuality. A decision to affirm a deportation order against him was quashed on the basis that insufficient assessment was given to whether the applicant’s human rights would be infringed by the behaviour required of him in order to avoid persecution. The thrust of the refugee and subsidiary protection decisions in the case, and of the deportation decision, was that the applicant could hide his homosexuality and not therefore expose himself to persecution, prosecution or serious harm.  

Refugee status was granted as the applicant was deemed at risk of persecution due to his homosexuality. The court found that homosexuals constitute a particular social group in Cameroon according to Section 60 (1) of the Residence Act / Art 10.1 (d) of the Qualification Directive. According to the Qualification Directive, sexual orientation does not only constitute an unchangeable characteristic, but is so fundamental to the identity of a person that he/she should not be forced to denounce it. That means that under the Qualification Directive it is no longer important if the applicant can persevere with abstinence in the long term. The punishment which the applicant would face due to homosexual acts in case of return does not simply constitute criminal prosecution, but is persecution in terms of Section 60 (1) Residence Act.

In assessing state protection, a judge must look, notwithstanding a general sufficiency of protection in a country, to the individual circumstances of the applicant. In assessing whether an appellant’s individual circumstances give rise to a need for additional protection, account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. When considering whether past persecution is a serious indication of a well founded fear under Article 4(4) of the Qualification Directive, Recital 27 to the Directive indicated that the past ill treatment of family members was also relevant.

The Administrative Court held that the results of language analysis alone, contradicting the applicant’s description of events, cannot be seen as sufficient proof of the applicant’s place of residence if no other facts have been presented to support the result of the language analysis.