International humanitarian law (IHL) / Armed forces / Military

In it’s judgement E 2372/2021 issued 7 October 2021, the Constitutional Court ruled that due to “UNHCR International Protection Considerations with Regard to People Fleeing the Republic of Iraq” from May 2019, Sunni Arab men and boys of fighting age, who lived in an area under ISIS control and/or where ISIS maintains a presence and women and children associated with real or perceived ISIS members on account of their family or tribal relations meet a specific risk profile as they are under general suspicion of supporting ISIS. Therefore, people fulfilling these characteristics are likely in need of international refugee protection, depending on the individual circumstances of the case. Referring to the UNHCR International Protection Considerations as well as the “EASO Country Guidance: Iraq” from January 2021 the Constitutional Court ruled that the Federal Administrative Court must duly take into consideration the individual situation of the complainant against the backdrop of the specific risk profile in case the complainant has put forward fear of persecution because of the affiliation to the risk profile in a substantiated way. In the present case the Federal Administrative Court assumed that the alleged threat by Shiite militias was due to the battles between ISIS, militias and Iraqi units at that time and has not been directed against the complainant or his family directly. It denied an individual persecution without considering that the complainant – a Sunni Arab of fighting age, who lived in an area under ISIS control – was meeting a specific risk profile. The Federal Administrative Court’s findings were thus found to be arbitrary by the Constitutional Court.

27 January 2022 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Topic(s): Armed forces / Military - Asylum-seekers - International armed conflict - Social group persecution | Countries: Austria - Iraq

29 July 2016 | Judicial Body: Australia: Administrative Appeals Tribunal | Topic(s): 1951 Refugee Convention - Armed forces / Military - Christian - Persecution based on political opinion - Physical harm - Religious discrimination - Religious persecution (including forced conversion) - Threats / Intimidation | Countries: Australia - Iraq

17 May 2016 | Judicial Body: Netherlands, The: Council of State (Raad van State) | Topic(s): 1951 Refugee Convention - Armed forces / Military - Denial of refugee status - Exclusion clauses - International courts and tribunals | Countries: Netherlands - Syrian Arab Republic

15 January 2015 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Appeal / Right to appeal - Armed forces / Military - Armed groups / Militias / Paramilitary forces / Resistance movements - Evidence (including age and language assessments / medico-legal reports) - Suspensive effect - Torture | Countries: France - Sudan

23 July 2014 | Judicial Body: United States Court of Appeals for the First Circuit | Topic(s): Armed forces / Military - Evidence (including age and language assessments / medico-legal reports) - Gang related violence - Indigenous persons - Persecution based on political opinion - Racial / Ethnic persecution - Social group persecution | Countries: Guatemala - United States of America

14 July 2014 | Judicial Body: United States Court of Appeals for the Fourth Circuit | Topic(s): Armed forces / Military - Armed groups / Militias / Paramilitary forces / Resistance movements | Countries: El Salvador - United States of America

5 December 2013 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Armed forces / Military - Freedom from torture, inhuman and degrading treatment - Lesbian, gay, bisexual, transgender and intersex (LGBTI) - Military service / Conscientious objection / Desertion / Draft evasion / Forced conscription - Persecution on the basis of sexual orientation or gender identity - Regional instruments | Countries: Türkiye - United Kingdom of Great Britain and Northern Ireland

BIA's conclusion on the lack of a causal nexus rejected and case remanded.

15 May 2013 | Judicial Body: United States Court of Appeals for the Ninth Circuit | Countries: Mexico - United States of America