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Serious harm

In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country.

Per Art.15:"(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

“Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.”

Source: 

Derived by EDAL from QD Art. 15 and Recital 26

English
Legislative reference(s): 

Recital 26 and Article 2(e), 4(3) and (4),5, 6, 7, 8, 15 and 16 Qualification Directive 2004/83/EC

Belgium: Council for Alien Law Litigation grants refugee status for Kosovan couple suffering from psychological trauma

The facts of the case relate to a couple originating from Kosovo, both of whom are of Albanian ethnicity and Muslim. In both cases the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) had declined to accord refugee statuses, principally because they had not sufficiently explained why psychological illness following on from the massacre of their families by the Serb forces in 1998-1999 amounted to persecution or serious harm, if they were to be returned to Kosovo.

Norway: Court of Appeal criticises credibility assessment by Directorate of Immigration

The case relates to a review of the Norwegian Directorate of Immigration’s evidentiary assessments in two asylum applications relating to Rwandan ethnic Hutus who feared persecution on account of a relative’s murder and their subsequent open investigation into said murder. The Directorate’s decision concluded that the applicants had not sufficiently substantiated their application on account of internal discrepancies, incoherencies and ambiguities within their statements. Further advancing that the applicants did not face a risk of persecution given that the case had occurred many years ago, the Directorate also surmised that there was no proof that it was an ethnically motivated murder.

CJEU - Case C‑542/13 Mohamed M’Bodj v État belge, 18 December 2014

Facts of the case: Mr M’Bodj, a Mauritanian national, was granted a residence permit in Belgium for medical reasons (a major eye disability), on the basis that his removal to Mauritania would subject him to a real risk of inhuman or degrading treatment due to the lack of adequate medical treatment.

UK - Upper Tribunal for Immigration and Asylum provides new country guidance on Angola and Cabinda

The UK Upper Tribunal has overturned its country guidance in FP (Return – Cabinda – Non-Luandan) Angola CG [2003] UKIAT 00204 and has ruled that despite serious human rights violations occurring within Cabinda and affecting Cabindans, these abuses do not render all returnees to Angola or Cabinda to be at risk of serious harm, whether or not they are Cabindans [129].

CJEU: Advocate General Opinion in Case C-562/13 Abdida

Facts of the case: Mr. Abdida, a Nigerian national diagnosed with AIDS, submitted an application to the Belgian state requesting leave to remain due to medical reasons.  Under Belgian law transposing the Qualification Directivethe state refused his leave to remain and an order to leave the country was issued.  When appealing against this decision, Mr. Abdida was not granted with a remedy having suspensive effect.

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