Czech Republic - Supreme Administrative Court, 4 February 2009, R.S. v. Ministry of the Interior, 3 Azs 75/2008-109

Country of Decision:
Country of Applicant:
Date of Decision:
04-02-2009
Citation:
3 Azs 75/2008-109
Court Name:
Supreme Administrative Court
National / Other Legislative Provisions:
Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 6
Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 71
Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a
Czech Republic - Code of Administrative Procedure (500/2004 Coll.) - Art 12
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Headnote: 

Unlike with subsidiary protection, it is necessary for there to be a causal link between persecution and the grounds for persecution when assessing the conditions for granting asylum. The fact that a conflict between LTTE and governmental armed units affected Tamil civilians does not mean nationality qualifies as a ground of persecution. 

Facts: 

The Applicant, who is of Tamil nationality, applied in the Czech Republic for international protection in 2007, as she allegedly had problems in Sri Lanka with the army, as well as the separatist group, the LTTE. The Ministry refused her application and did not grant her international protection in either of its forms. Based on the action filed with the Regional Court, the decision of the Ministry was repealed regarding subsidiary protection, and the asylum claim was dismissed. For this reason, the Applicant appealed the decision refusing asylum to the Supreme Administrative Court. She linked her well-founded fear of persecution to her nationality.

Decision & Reasoning: 

The Court pointed out in the introduction that unlike subsidiary protection, in granting asylum a causal link between the persecution and an exhaustive list of determined grounds for persecution is required. In the case of asylum, a “serious breach of human rights” is to be examined, whereas in the case of subsidiary protection, it is “serious harm”. According to the Court, it was proved that the civil population in Sri Lanka was dragged into the conflict between the governmental troops and LTTE and that the government was not able to protect its citizens. In this context, the Regional Court was correct in concluding that the case of the Applicant had to be re-examined based on objective information and the risk of serious harm if she were to return; that is to say, the conditions for granting subsidiary protection. The real risk of serious harm should be examined, in particular with a focus on possible risk factors, as outlined in the judgment NA v. the United Kingdom of the European Court of Human Rights.

Yet on the other hand, the Court did not affirm that in the case of the Applicant the persecution was due to her nationality. The Applicant had, up to this, linked her problems with her nationality, but according to the Court the reasons for her problems were different. The reason for the attention and actions of the authorities against the Applicant was the geographic location of her home and her place of work, which resulted in pressure on her person from both parties (the troops and LTTE) but not her nationality as such.

Outcome: 

The cassation complaint was dismissed.

Subsequent Proceedings : 

The decision of the regional court was therefore upheld by the Supreme Administrative Court and the case was returned to the Ministry for re-examination of the subsidiary protection claim.

Observations/Comments: 

As a result of the decision, it follows that the Regional Court determined that the information on the country of origin was insufficient. Specifically, in relation to the information from the UK Home Office – Operational Guidance Note: Sri Lanka,  9 March 2007 - it stated that the Guidance Note is not to be the only source used due to the questionable objectivity of such information intended for the staff of the UK Home Office in making decisions.

Other sources cited: 
  • Kosař, D., Rozdíly mezi azylem a doplňkovou ochranou: definice „uprchlíka“ vs. definice „osoby, která má nárok na doplňkovou ochranu“, článek ze sborníku příspěvků Společný evropský azylový systém: doplňková ochrana, Masarykova Univerzita Brno, 2007;
  • UK Home Office Operational Guidance Note: Sri Lanka, 9 March 2007.
Case Law Cited: 

Czech Republic - Supreme Administrative Court, 31 January 2008, 4 Azs 94/2007

Czech Republic - 1 Azs 13/2006-39 (Supreme Administrative Court)