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Ireland - High Court, 5 May 2011, B. v Refugee Appeals Tribunal  IEHC 198
European Union Law > Qualification Directive > Art 2
European Union Law > Qualification Directive > Art 12 > Art 12.2 (c)
European Union Law > Qualification Directive > Art 12 > Art 12.2(a)
European Union Law > Qualification Directive > Art 12 > Art 12.2(b)
European Union Law > Qualification Directive > Art 12 > Art 12.3
European Union Law > Qualification Directive > Recital 16
European Union Law > Qualification Directive > Recital 17
International Law > ICC Statute > Art 7 > Art 7.1
International Law > ICC Statute > Art 7 > Art 7.2
National Legislation > Legislation - Ireland
National Legislation > Legislation - Ireland > Refugee Act 1996, Sec 2
In applying Art 12 of the Qualification Directive concerning exclusion from refugee status, the decision-maker is required to conduct an individual assessment of the applicant’s circumstances and, specifically, of his own complicity, if any, in crimes against humanity.
The applicant in this case claimed to be a regional commander of a faction of the Taliban in Helmand province, Afghanistan. He claimed that if he was returned to Afghanistan he would be likely to suffer persecution by reason of his status as a prominent Taliban commander. There was an extant warrant for his arrest issued by the Afghan authorities. The applicant contended that he might well be imprisoned and that his life might be at risk. These latter contentions were in substance accepted by the Tribunal, which found that the applicant presented with a credible and well founded fear of harm. The Tribunal went on to decide, however, that the applicant was in fact fleeing prosecution as a result of his Taliban activities and that this could not amount to persecution for the purposes of the Geneva Convention. The Tribunal also went on to apply the exclusion provision as provided for in Art 12 of the Qualification Directive.
At the application for leave to apply for judicial review of the Tribunal’s decision, the Court (Hogan J.) granted leave on the basis that, in relation to Art 12 of the Qualification Directive, the Tribunal had failed to conduct an individual assessment of the applicant’s circumstances and, specifically, of his own complicity, if any, in crimes against humanity.
The Court stated:
“The Tribunal was clearly entitled to form the view that by virtue of the applicant’s “relatively senior position” in the Taliban it was legitimate to presume that, in the language of the Court of Justice, he had “individual responsibility for acts committed by that organisation during the relevant period.” Yet paragraph 97 in particular of the judgment of the Court of Justice in B und D clearly requires that adjudicating authority to conduct an individual assessment of the applicant’s circumstances and, specifically, in his own complicity - if such be the case - in crimes against humanity which, as we have already noted, the Taliban undoubtedly committed.
In the context of an asylum application such as the present one, it is not immediately clear how this is readily to be done. One can sympathise with the Tribunal’s observation that any applicant in this position will inevitably deny involvement in the killing of civilians. How, then, is the adjudicator to conduct that personalised assessment in respect of an applicant’s alleged complicity in crimes against humanity a jurisdiction such as Afghanistan where, perforce, the witnesses and documents necessary to such an inquiry will invariably not be available?
It is, of course, correct to say that both the Refugee Applications Commissioner and the Tribunal are often faced with considerable difficulties in making credibility assessments in respect of events which are said to have occurred in unfamiliar jurisdictions of which we have imperfect knowledge. But at least in such circumstances the adjudicator has the benefit of country of origin information. While such information can - and does - identify the likely perpetrators of terrorist activities, this type of documentation is generally unlikely to be able to shed much light on the question of whether an individual had the kind of personalised knowledge and complicity which the Court of Justice appear to require.
But difficult or otherwise, this type of assessment is what is now required in the light of the B und D. It seems to me that the applicant has established substantial grounds that the Tribunal did not conduct this type of assessment.”
The High Court also concluded that, given the UN Security Council had resolved that the International Security Assistance Force (ISAF) was the legitimate force to act in support of the Afghan Government, and given that the applicant had proclaimed not only his opposition to the ISAF, but the fact that he engaged in military combat with the ISAF, it would be difficult to see how the applicant’s conduct was not in and of itself contrary to the purposes and principles of the United Nations within the meaning of Art 12.2(c) of the Qualification Directive.
Leave to apply for judicial review was granted on the basis that the Tribunal had erred in its consideration of Art 12 of the Qualification Directive.
At the substantive hearing in November of 2011, the Court ((Cooke J), November 10, 2011) agreed with the reasoning of Hogan J as regards the need for an individual assessment as described by the CJEU in Bundesrepublik Deutschland v. B. und D.  ECR I-000. However, the Court held that the Tribunal’s decision in relation to exclusion was not an “operative finding” as the Tribunal had come to the prior conclusion that the applicant was fleeing prosecution rather than persecution and so was not a refugee.
Although the High Court refused to quash the Tribunal’s decision on the basis that its consideration of Art 12 of the Qualification Directive was not the “operative basis” for its decision, at both the leave stage and the substantive hearing the High Court followed the reasoning of the CJEU in Bundesrepublik Deutschland v. B. und D.  ECR I-000 as regards the need for an individual assessment of culpability. The comments of the Hogan J as regards Art 12.2(c) are also noteworthy.