Sweden - Migration Court of Appeal, 9 March 2011, UM 3363-10 & 3367-10

Country of Decision:
Country of Applicant:
Date of Decision:
09-03-2011
Citation:
UM 3363-10 & 3367-10 (combined judgment)
Additional Citation:
MIG 2011:6
Court Name:
Migration Court of Appeal
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Headnote: 

A young couple (both minors) were eligible for subsidiary protection as they risked being the victims of honour-related violence in their country of origin. The Migration Court of Appeal concluded that in this particular case, it would be unreasonable to ask the applicants to have sought the protection of domestic authorities.

Facts: 

The applicants (both Kurds from northern Iraq) stated that they were threatened by their families who did not accept their relationship. They had not been allowed to marry. Instead, the girl had been promised to a cousin. Both their lives had been threatened by the girl’s family and the couple had lived in hiding for a year to avoid the forced marriage taking place. The applicants had not asked the authorities for help as they did not think they would receive any since the girl’s father is a state official and a clan leader.

The Migration Board rejected their applications on 29 October 2009, mainly due to lack of credibility. On March 25 2010 the Gothenburg Migration Court reversed the decision and granted the applicants subsidiary protection (Aliens Act Chapter 4, Section 2, item 1, transposing in part Article 15 (a) and (b) of the Qualification Directive and Article 3 of the ECHR). The Chair of the Court (the law judge) wrote a dissenting opinion, stating that the applicants could not be granted protection due to lack of credibility and that they had not shown a sufficient need for protection. The Migration Board appealed the judgment to the Migration Court of Appeal, claiming mainly that adequate facts supporting the claim that the authorities in the region could not offer satisfactory protection against honour-related violence had not been presented in the case. The applicants argued that such protection was not available.

Decision & Reasoning: 

The Migration Court of Appeal held an oral hearing on 13 January 2011.

In its judgment the Court began with an account of the meaning of Article 7 of the Qualification Directive. It then continued with a comprehensive account of COI regarding honour-related violence in northern Iraq and the protection available from such violence.

The Migration Court of Appeal, without going into detail, stated that the applicants were not eligible for refugee status – refugee status based on gender-related persecution (Aliens Act Chapter 4 Section 1, transposing Article 9 of the Qualification Directive) was not discussed. The Court then discussed the credibility of the applicants and concluded that their accounts, with certain exceptions, were credible. The applicants should thus be considered to have shown that they had substantial grounds to believe that they, would they return to their country of origin, would face a real risk of being subjected to honour-related violence or other such violations.

The question was then if local authorities in the country of origin could offer the applicants effective protection. The Migration Court of Appeal recognised that COI provides evidence that such protection certainly is available (in particular for women) but that it is a delicate situation.  It is therefore, the Court concluded, not possible to say in general that the protection offered is effective. An individual assessment must always take place. In the present case the Court thus found that, taking into account the girl’s father’s position in society, the limited knowledge available concerning the protection available for young girls against their parents, the limited access to protection for men subject to honour-related violence, as well as the fact that both applicants were minors, it was not reasonable to require the applicants to have sought protection from the local authorities. Internal protection was not considered applicable.

Therefore, both applicants were granted subsidiary protection under Chapter 4, Section 2 item 1 (transposing in part Art 15 (b) of the Qualification Directive).

Outcome: 

The Migration Court of Appeal denied the appeal and granted the applicants subsidiary protection status.

Observations/Comments: 

Obiter Comments: One of the judges was in disagreement. In her dissenting opinion she argued that neither had the applicants shown enough evidence to support their claims for protection nor were they to be seen as credible.

It can be noted that gender-related persecution is not discussed at all in the judgment, even though honour-related violence would be relevant to the assessment of need for protection.

Case Law Cited: 

Sweden - MIG 2007:12

Sweden - MIG 2007:9