Case summaries

Within the meaning of Section 8 of the Asylum Act, a particular social group is a group of people who share a common characteristic which is objectively given or is perceived as such by society. The characteristic in question usually has an innate, unchangeable form or is otherwise fundamental to human identity, conscience or the exercise of the human rights of the persons affected. 

It therefore usually comprises a group of people of similar social origin or status, social habits and customs, or of a similar sexual orientation, who are in a minority due to their otherness.

Currently every Sunnite and Shiite from Central and South Iraq is to be considered as a refugee within the meaning of Section 60 (1) Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations.

Returnees who originate from regions of mixed denominations cannot obtain internal protection in any part of Iraq.

The provisions of Article 29(1)(b) of the Legislative Decree of 25 July 1998, No 286, which allow reunification with adult children to take place under stricter conditions than those relating to underage children or dependent parents, are consistent with the Constitution.

The CALL ruled that for the recognition of subsidiary protection status (serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict), where doubt exists as to whether a person is a civilian or not, that person shall be considered to be a civilian.

The Council of State ruled that significant similarities between accounts that were being presented by different asylum seekers with the same nationality, ethnic origin and provenance, who applied for asylum in the same period of time, was certainly remarkable, even suspicious, but that this suspicion alone does not  suffice to establish fraud by the applicants.

The question as to whether or not an armed conflict existed has to be answered according to humanitarian law (common Art 3 of the Geneva Convention and the second additional protocol).

This case concerned the detention of children. It was held that the policy which permitted the detention of children in a family for a limited time (about 14 days) was lawful, longer detention of children was found to be unreasonable and therefore unlawful. The State also breached Art 8 of the European Convention on Human Rights of a detained child by not being proactive in assessing and preventing forseeable risk to his health. 

Under Art 4 of the Qualification Directive the applicant is obliged to substantiate his application. No obligation exists on the State, if the applicant failed to do so, to provide an expert who can establish the authenticity of the submitted documents.

Application for annulment of a decision by the Minister of Public Order

This case concerned the interpretation of Presidential Decree 61/1999 in light of Directive 2004/83/EC andexamined the reasoning of the Administration's decision in an application for recognition as a refugee, in an appeal for annulment. The minutes of the Advisory Committee should cite not only the interested party's claims but also the content of the questions put by members of the Committee and the alien's responses, as well as a detailed assessment of the claims and of any documentation or other evidence which may have been submitted. There is an obligation on the members of the Committee to deliver a reasoned judgment on the credibility of the asylum seeker. 

This case examines the differences between the procedure for examining a claim for asylum and the procedure for examining the application of exclusion clauses.