1. Refugee Status Determination Seminar
Dr. Vladislava Stoyanova

2. Soleimani’s case

3. Elina’s case

4. Ioane Teitiota
Kiribati comprises 33 atolls and reef islands and one raised coral island, Banaba. They have a total land area of 800 square kilometres (310 sq mi), and are dispersed over 3.5 million square kilometres, (1,351,000 square miles).

5. Credibility
N. v. Finland, Application No /02, Judgment of 26 July 2005
The ECtHR
was ”not prepared to accept every statement [of N.] as a fact”
accepted that the information N. gave on his travel route was not credible
did not even raise the issue of multiple identities
thought it to be sufficiently credible that N. belong to the risk group of Mobutu’s agents and bodyguards.
Facts of the case:
N. Was Mobuto’s bodyguard and worked as an agent for the DR of Congo. It was very complicated case. N. was an asylum-seeker in the NL, where he was rejected. He had different identities. The decision-making body in Finland, found the applicant to lack credibility.
The ECtHR sent a fact-finding mission to Finland. The mission interviewed the applicant, the decision-maker, witnesses.

6. Credibility
N. v. Finland, Application No /02, Judgment of 26 July 2005
The assessment of credibility is not about the applicant’s general credibility
Credibility assessment is limited to draw on circumstances relevant for assessing the risk
Even if claims related to the travel route lack credibility, this does not affect the credibility of claims related to protection need.
Even if information on the applicant’s identity is unclear or lacks credibility, this does not affect the credibility of claims related to protection need.

7. Credibility
R. C. v. Sweden, Application No /07, Judgment of 9 March 2010
‘[…] the Government has questioned the applicants’ credibility and pointed to certain inconsistencies in his story. […] The Court finds that the applicant’s basic story was consistent throughout the proceedings and that notwithstanding some uncertain aspects, such as his account as to how he escaped from prison, such uncertainties do not undermine the overall credibility of his story.’ (para.52)

8. Duty to Investigate
R. C. v. Sweden, Application No /07, Judgment of 9 March 2010 ‘In the Court’s view, the Migration Board ought to have directed that an expert opinion be obtained as to the probably cause of the applicant’s scars in circumstances where he had made out a prima facie case as to their origin. It did not do so and neither did the appellate courts. While the burden of proof, in principle, rests on the applicant, the Court disagrees with the Government’s view that it was incumbent upon him to produce such expert opinion. In cases such as the present out, the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an applicant’s injuries may have been caused by torture.’ (para.53)

9. Duty to Investigate
R. C. v. Sweden, Application No /07, Judgment of 9 March 2010 ‘Having regard to its finding that the applicant has discharged the burden of proving that he has already been tortured, the Court considers that the ones rest with the State to dispel any doubts about the risk of his being subjected to treatment contrary to Article 3 in the event that his expulsion proceeds.’ (para.53)

10. The Refugee Definition
Alienage
Well-founded fear
Persecution
Agents/Actors of Persecution
Convention grounds
race, religion, nationality, membership in a particular social group, political opinion
Nexus
UNHCR Handbook, para. 37, 40
Subjective plus objective factors
Hathaway, objective factors
state
non-state (inability or unwillingness by the state to protect)
Keep in mind the Qualification Directive
Alienage
The person must have crossed international border in order to be recognized as a refugee; he/she has to be outside his/her country of origin. The idea is that the international community has access to the individual once outside his country of origin and can offer him/her a surrogate form of protection. (ACCESS TO TERRITORY)
Well-founded fear
The fear is supposed to be forward-looking: what will happen to the asylum-seekers upon return to his/her country of origin. Although, it should be kept in mind that UNHCR has stated that some refugees experience such kind of horrendous treatment that even though there might be change of regime, it cannot be expected from them to go back. Also, past persecution is regarded as a strong indication that upon return, the person will again face danger of persecution.
Tools for establishing the well-founded nature of the fear: AS’s testimony (credibility); past persecution; harm to similarly situated persons; general human rights situation. This is the point where the country of origin information becomes relevant.
Persecution.
Hathaway: ‘the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.’ Formula used: Serious Harm plus Lack of State Protection. Forward looking expectation of harm. Human rights law serves as a frame when interpreting what persecution mean.
Note the difference between PERSECUTION and PROSECUTION.
Convention grounds
As to political opinion, keep in mind that these could be genuinely held political opinion, but it could be also imputed political opinion also.
The most controversial, but at the same time the Convention ground which has given the possibility for progressive interpretation of the refugee definition is ‘membership in a particular social group.’ There are two approaches to it (1) protected characteristics approach or immutability approach (2) social perception approach . [see your notes on Elina’s case]
protected characteristics approach
innate/unchangeable characteristic (gender, sex, homosexuality) ;
linked to the past (certain professions, prostitution);
(iii) voluntary association fundamental to personal identity/dignity (this is not really immutable, but cannot be expected to be given up) (being a member/activist of a human rights organization)
Human rights law may help is to identify characteristic deemed so fundamental to human dignity that one ought not to be compelled to forego them.
social perception approach – perceived by the society as a separate group within the society
Does it make a difference what approach is applied? Convergence: if somebody is targeted because of innate characteristic, people who have these characteristics are perceived as separate/different within the society. Divergence: certain occupations: farmers/journalists. Then the social perception approach might work better.
Examples: domestic violence, female genital mutilation, social mores, women who have transgressed the social mores of their culture, women who wear certain clothes; sexual orientation, transsexuality, caste/clan.
Persecution alone does not create a group (but may indicate the perception as a group)
No need for every member of the group to be threatened with persecution
No need for cohesion (knowing each other)
Nexus
UNHCR Guidelines on Membership of a Particular Social Group ‘The causal link may be satisfied: (1) where there is a real risk of being persecuted at the hands of a non-State actor for reasons which are related to one of the Convention grounds, whether or not the failure of the State to protect the claimant is Convention related; or (2) where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for a Convention reason.’

11. Useful sources
(excellent on asylum case law) (UNHCR's repository of documents, case law and legislation) (ECRE weekly bulletin, reporting developments) (European Migration Network database)

12. Thank you ! Vladislava Stoyanova