Burden / standard of proof

The Constitutional Court addressed its judgement E 3445/2021 (issued 30 September 2021) that an extreme volatility of the security situation in Afghanistan was to be assumed based on country information sheets on Afghanistan issued by the Austrian COI Unit on 11 June 2021 and 19 July 2021 at the date of the decision of the Federal Administrative Court on 29 July 2021. In addition, the widespread media coverage after 20 July 2021 (which was therefore available at the time of the decision of the Federal Administrative Court) lead to the same conclusion. The complainant would have therefor been exposed to a real danger of violation of his constitutional rights under Articles 2 and 3 ECHR if he were to return to Afghanistan. (see also E 3047/2021 issued 24 September 2021)

30 September 2021 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Document type: Case Law | Topic(s): Asylum-seekers - Country of origin information (COI) | Countries: Afghanistan - Austria

In its judgment E 3047/2021 issued 24 September 2021, the Constitutional Court ruled that based on the Austrian COI Unit’s (Staatendokumentation) country information sheet on Afghanistan dated 11 June 2021 , the risk of an armed conflict between the Taliban and government troops affecting the whole country should have been apparent to the Federal Administrative Court at the date of its decision on 1 July 2021. Thus, the risk of a serious threat to life or physical integrity as a result of arbitrary violence in the context of an internal conflict for members of the civilian population such as the complainant must have been clear to the Federal Administrative Court at the time of its decision. Furthermore, the Constitutional Court found that due to the widespread media coverage of the developments in Afghanistan, the Federal Administrative Court had to assume that the security situation in Afghanistan was to be classified as extremely volatile. It also reiterated that widespread media coverage must be considered notorious. The Constitutional Court therefore found that the Federal Administrative Court did not meet its obligation to investigate in detail the existence of a real risk of a violation of Art 2 or Art 3 ECHR if the complainant were to return to Afghanistan in view of the almost daily changing situation in the armed conflict between the Taliban and the Afghan government and its troops. The Federal Administrative Court had denied a military conflict in certain places, without considering the serious threat of an imminent significant deterioration of the security situation, that had in fact already partially occurred across the country and was possibly imminent in the places which the Federal Administrative Court considered an internal flight alternative for the complainant (namely Mazar-e Sharif and Herat). Since the Federal Administrative Court’s assumption of the complainant’s return situation in line with Articles 2 and 3 of the ECHR was solely momentarily without considering the rapidly changing security situation in Afghanistan, its findings were found to be arbitrary by the Constitutional Court.

24 September 2021 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Document type: Case Law | Topic(s): Asylum-seekers - Country of origin information (COI) | Countries: Afghanistan - Austria

23 September 2021 | Judicial Body: South Africa: Supreme Court of Appeal | Document type: Case Law | Topic(s): Burden of proof - Credibility assessment - Persecution based on political opinion - Rule of law / Due process / Procedural fairness | Countries: Somalia - South Africa

The request for a preliminary ruling concerns the interpretation of Article 2 (j) of Directive 2011/95 / EU of the European Parliament and of the Council of 13 December 2011 concerning the standards relating to the conditions to be met by third country nationals or stateless persons in order to benefit from international protection, to a uniform status for refugees or persons eligible for subsidiary protection, and to the content of this protection

9 September 2021 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Legal Instrument: 2011 Recast Qualification Directive (EU) | Topic(s): Evidence (including age and language assessments / medico-legal reports) | Countries: Afghanistan - Germany

The issues in the appeal are (1) whether the Court of Appeal erred in law in assessing the lawfulness of the policy guidance by reference to whether it (a) created a real risk of more than a minimal number of children being detained, and/or (b) created a risk which could be avoided if the terms of the policy were better formulated; and (2) whether the Court of Appeal erred in concluding that criterion C, as construed in the context of the relevant policy as a whole, is unlawful.

30 July 2021 | Judicial Body: United Kingdom: Supreme Court | Document type: Case Law | Topic(s): Asylum policy - Evidence (including age and language assessments / medico-legal reports) | Countries: Eritrea - United Kingdom of Great Britain and Northern Ireland

July 2021 | Publisher: European Union: European Asylum Support Office (EASO) | Document type: Thematic Reports

On those grounds, the Court (Third Chamber) hereby rules: 1. Article 40(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 4(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as precluding national legislation under which any document submitted by an applicant for international protection in support of a subsequent application is automatically considered not to constitute a ‘new element or finding’, within the meaning of that provision, when the authenticity of that document cannot be established or its source objectively verified. 2. Article 40 of Directive 2013/32, read in conjunction with Article 4(1) and (2) of Directive 2011/95, must be interpreted as meaning, first, that the assessment of the evidence submitted in support of an application for international protection cannot vary according to whether the application is a first application or a subsequent application and, second, that a Member State is required to cooperate with an applicant for the purpose of assessing the relevant elements of his or her subsequent application, when that applicant submits, in support of that application, documents the authenticity of which cannot be established.

10 June 2021 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Topic(s): Credibility assessment - Refugee status determination (RSD) / Asylum procedures | Countries: Afghanistan - Netherlands

For UNHCR’s intervention at the district court level, see the Brief of the United Nations High Commissioner for Refugees as Amicus Curaie in Support of Plaintiff’s Cross-Motion for Summary Judgment in case Grace, et. al., Plaintiffs, v. Jefferson Beauregard Sessions III, in his Official Capacity as Attorney General of the United States, et. al., Defendants. For UNHCR’s intervention in this case, see Brief of Amicus Curiae United Nations High Commissioner for Refugees in Support of Plaintiffs-Appellees in case Grace, et. al., Plaintiffs-Appellees, v. William P. Barr, Attorney General, et. al., Defendants-Appellants. From the Court: "Twelve asylum seekers challenge a host of executive-branch policies adopted to implement the expedited-removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), [...]. Broadly speaking, the challenged policies concern how asylum officers determine whether an alien has demonstrated a “credible fear” of persecution, a threshold showing that permits an alien who would otherwise be immediately deported to seek asylum in the United States. The asylum seekers principally argue that the policies raise the bar for demonstrating a credible fear of persecution far above what Congress intended and that the Attorney General and various agencies violated the Administrative Procedure Act (APA), [...] by failing to adequately address important factors bearing on the policies’ adoption. Largely on these grounds, the district court found the policies inconsistent with IIRIRA, the Immigration and Nationality Act (INA), [...] seq., and the APA, and enjoined their enforcement. For the reasons set forth in this opinion, we affirm in part and reverse in part."

20 May 2021 | Judicial Body: United States Court of Appeals for the District of Columbia Circuit | Document type: Case Law | Topic(s): Agents of persecution - Burden of proof - State protection | Countries: United States of America

17 February 2021 | Publisher: UN High Commissioner for Refugees (UNHCR) | Document type: Comments on National Legislation