ABDI ABDI v. ΚΥΠΡΙΑΚΗΣ ΔΗΜΟΚΡΑΤΙΑΣ MEΣΩ ΥΠΗΡΕΣΙΑΣ ΑΣΥΛΟΥ, Έφεση Κατά Απόφασης Διοικητικού Δικαστηρίου Διεθνούς Προστασίας
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Date:
19 December 2024
ABDI ABDI v. ΚΥΠΡΙΑΚΗΣ ΔΗΜΟΚΡΑΤΙΑΣ MEΣΩ ΥΠΗΡΕΣΙΑΣ ΑΣΥΛΟΥ, Έφεση Κατά Απόφασης Διοικητικού Δικαστηρίου Διεθνούς Προστασίας
In this section
This case involves an appeal filed by a Somali national (the Appellant) against the decision of the International Protection Administrative Court (IPAC), which upheld the rejection of his application for international protection by the Cypriot Asylum Service.
The Appellant, a Somali citizen, applied for international protection on in 2016 claiming to be an unaccompanied minor. Following an age determination interview, he was confirmed to be a minor. The Asylum Service determined that the Appellant did not meet the criteria for refugee status under Article 3(1) of the Refugee Law (N.6(1)/2000) or for subsidiary protection under Article 19(2). They reasoned that he could safely relocate to Mogadishu, where he had family connections.
The Appellant challenged the Asylum Service’s decision before the IPAC. The Court acknowledged certain procedural deficiencies during the Asylum Service interview but proceeded to evaluate the substance of the case. The IPAC recognized that the Appellant was a minor when he initially applied for asylum. However, by the time of its decision, he had reached adulthood. The court considered his capacity to work and provide for himself and concluded that he no longer faced a significant risk of harm. Furthermore, the IPAC relied on information indicating that Mogadishu was under government control and that the Appellant had family members there (his grandmother and uncle). It determined that he could reasonably be expected to relocate there and live a normal life. Therefore, the IPAC upheld the rejection of the Appellant’s application for both refugee and subsidiary protection.
The Appellant challenged the IPAC’s decision on two grounds raising two issues of error. The first was that the IPAC failed to provide a reasoned conclusion regarding his claims of past persecution. He claimed it overlooked evidence that he faced a risk of forced recruitment by Al-Shabaab due to his membership in the minority Shekhal clan. Secondly, the Appellant argued that the IPAC misjudged the risks of relocating to Mogadishu, ignoring credible and updated reports on the security situation. He highlighted the lack of a meaningful support network in Mogadishu and the inability of his elderly, blind relatives to provide assistance. The Appellant referenced recent reports that underscored the dangers of Mogadishu, highlighting that relocation there is generally not viable except in exceptional cases.
The Court of Appeal found that the IPAC relied on outdated and less comprehensive sources, failing to incorporate the updated and credible reports provided by the Appellant. Furthermore, the IPAC underestimated the Appellant’s vulnerabilities, including his minority status and lack of a support network. Lastly, the Court of Appeal found that the IPAC did not adequately consider the principle that internal relocation must be assessed in light of both general conditions in the relocation area and the applicant's individual circumstances.
Therefore, the Court of Appeal overturned the IPAC’s decision. It remitted the case back to the IPAC for reassessment, instructing it to take into account the Appellant’s personal circumstances, including his vulnerability as a minority group member, consider updated and credible information about conditions in Mogadishu, and reevaluate whether relocation to Mogadishu would allow the Appellant to lead a "normal life."
D E C I S I O N
EFSTATHIOU-NIKOLETOPOULOU, J.: This Appeal is directed against the decision of the Administrative Court of International Protection dated 10/10/2022 in Appeal No. 1096/2017, which upheld the decision of the Asylum Service dated 26/05/2017, rejecting the Appellant's application for international protection.
The facts of the case are summarized as follows:
The Appellant, a Somali national, submitted an application for international protection as an unaccompanied minor on 11/03/2016. On 20/05/2016, an age determination interview was conducted, following the completion of which it was confirmed that he was a minor.
It is noted that, at the request of the Appellant, an application for family reunification was submitted before the competent Norwegian authorities, which was rejected. On 16/05/2017, an interview was conducted by a responsible officer of the Asylum Service, in the presence of an interpreter and a representative from the Social Welfare Services, and on 17/05/2017, a recommendation to reject the Appellant’s application for international protection was submitted to the Head of the Asylum Service, which was approved on 18/05/2017. The Appellant was informed of this decision by a letter dated 26/05/2017.
The first-instance Court, examining the grounds for annulment presented, found the legality of the contested decision to be flawed due to procedural deficiencies on the part of the Respondent during the interview process. It then proceeded to examine the substance of the Appellant’s application based on the evidence presented before it, taking into account changes in the personal circumstances of the Appellant, namely that he had reached adulthood, in conjunction with his ability to work and support himself. It concluded that, based on the evidence before it, the conditions were not met for granting the Appellant refugee status under Article 3(1) of the Refugees Law (Law 6(I)/2000) or for granting him subsidiary protection under Article 19(2) of the Law.
The Appellant challenges the first-instance Decision with two Grounds for Appeal:
With the first Ground for Appeal, the Appellant claims that the first-instance Court erroneously concluded that the conditions of the relevant Law for recognizing him as a refugee were not met and erroneously failed to reach a reasoned conclusion regarding his past persecution. With the second Ground for Appeal, the Appellant argues that the first-instance Court erroneously concluded that, in light of international sources of information and the facts of the case, he could, if returned to his country of origin, settle in the city of Mogadishu, and consequently erroneously decided that there was no need to grant the Appellant subsidiary protection.
The common basis of the two Grounds for Appeal lies in the alleged absence of an assessment by the first-instance Court of the Appellant's factual circumstances and personal conditions, in conjunction with information regarding his country of origin. For this reason, the two Grounds for Appeal will be examined jointly.
As mentioned, the first-instance Court, having found the legality of the contested decision to be flawed, taking into account that the Appellant was a minor at the time his application was examined by the Asylum Service, proceeded to examine the substance of the Appellant’s application, treating him as an adult due to changes in his personal circumstances.
It noted the following:
“However, today, the Court is called upon to evaluate whether, based on the evidence before it and the Applicant’s personal characteristics and the current security situation in his country of origin, the Applicant meets the requirements of Article 3 of the Refugees Law for recognition as a refugee or, alternatively, whether he meets the requirements of Article 19 of the Refugees Law for recognition as a beneficiary of subsidiary protection.
Within the framework of the ex nunc examination that the Court is required to conduct, I consider that the Court cannot, on the one hand, take into account new evidence regarding the Applicant’s country of origin and place of habitual residence but, on the other hand, ignore the changes in the Applicant’s personal circumstances, namely his current age and his ability to work and support himself as an adult. Accepting such a position would constitute selective behavior by the Court and, in any case, be contrary to the requirement for an individualized examination of the Applicant’s request for recognition as a refugee or, alternatively, as a beneficiary of subsidiary protection.
[...]
Basically, the Applicant claims that he has a well-founded fear of persecution because he may be forced into recruitment by Al Shabab in the absence of a support network in his country of origin.”
As stated, the first-instance Court “studied the sources presented by the Applicant in support of his application, conducted research on recent sources of information regarding the Applicant’s country of origin.” Specifically, for the city of Jowhar, the Appellant’s area of habitual residence, the first-instance Court found the following:
“... the situation in the Jowhar area of the Middle Shabelle province, according to recent sources of information and applying the reasoning of the CJEU in the case of Elgafaji (above), indicates that the level of indiscriminate violence characterizing the Jowhar area, the Applicant’s place of habitual residence, and generally the Middle Shabelle province, has reached such a level that mere presence in that area puts the Applicant at risk.”
Subsequently, the first-instance Court examined whether the Appellant could relocate to Mogadishu and, referring to the findings of its information sources, concluded that there was no basis to grant the Appellant subsidiary protection under Article 19(2) of the relevant Law.
In the proceedings before us, the Appellant argued that the first-instance Court does not appear to have considered that he lacked an adequate support network in the Mogadishu area, as he has no family ties there, and that he is a member of a minority clan, resulting in an increased risk of persecution or serious harm. He also asserts that, according to accurate and up-to-date information, such as the recent report of the European Union Agency for Asylum (formerly the European Asylum Support Office) titled "Country Guidance Somalia, June 2022," the requirement for the existence of protection in Mogadishu is met only in exceptional cases, taking into account the applicant’s personal circumstances.
It also references a report by the United Nations High Commissioner for Refugees titled "International Protection Considerations with Regard to People Fleeing Somalia, September 2022," according to which the possibility of internal relocation to the city of Mogadishu is generally not available, and it emphasizes that, when evaluating the possibility of internal relocation, the burden of proof lies with the one deciding on the asylum claim.
In the first-instance Decision, it was noted that the Appellant's claims, as derived from his application, interviews, and sworn affidavit on his application for the admission of evidence dated 13/3/2020, which was accepted by an interim decision of the first-instance Court dated 31/12/2020, are summarized as follows:
The Appellant, who was a minor before his departure from Somalia, lived with his father and stepmother in the city of Jowhar and, as he claims, was abused by his stepmother and her brother in an effort to recruit him into the terrorist organization Al Shabaab. In Mogadishu, his mother lived in a friend's house along with her mother and her brother (the Appellant's grandmother and uncle on his mother's side), both of whom are blind. As he was informed by his aunt (his mother's sister), who lives in Norway, his mother passed away in July 2017, and his father in January 2019. His uncle (his father’s brother), who helped him leave the country, was murdered by the organization Al Shabaab.
Specifically regarding his ties with his grandmother and uncle on his mother's side, who reside in Mogadishu, the Appellant states in paragraph 11 of his sworn affidavit dated 13/3/2020 (on his application for the admission of evidence—above) that he has never met them, and, as he has been informed by his aunt living in Norway, they do not have their own house, are elderly and blind, cannot work, and depend entirely on the assistance of their neighbors for survival. The Appellant also mentions in paragraph 15 of his sworn affidavit dated 13/3/2020 that he never attended school in Somalia and was taught at home by his father.
Regarding the Shekhal clan, to which the Appellant belongs, as he mentions in paragraph 6 of his sworn affidavit, it is accepted by the first-instance Court (page 13 of the first-instance Decision) that it is classified as one of Somalia’s minority clans and that, according to information sources, "Membership in Al-Shabaab is observed to be more common among individuals belonging to minority clans due to the assurance it provides in improving their social status."
The first-instance Court, examining the possibility of relocating the Appellant to Mogadishu, referred to the Guidelines of the UN High Commissioner for Refugees and noted the following:
"Taking into account, among other things, the Guidelines of the UN High Commissioner for Refugees titled ‘The Possibility of Internal Relocation within the Country of Origin’ in the context of Article 1 A (2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees,’ it is accepted that: ‘the concept of the possibility of relocation to another part of the country of origin refers to a geographically defined area of the country where there is no risk of a well-founded and justified fear of persecution and where, considering the particular circumstances of the case, it is reasonably expected that the asylum seeker could lead a normal life.’ [13]
In the subsequent part of the decision, the possibility of internal relocation to the city of Mogadishu is examined, given that it is one of the areas controlled by the legitimate government in the country and the Applicant has family members (an uncle and grandmother on his mother’s side) in the area, while there is easy and direct access by air.”
Having referred to the information sources, it concluded that:
"There are therefore not the same levels of generalized violence in Mogadishu, despite the frequent targeted attacks against high-profile targets.
In light of the international sources of information and the data before me regarding the specific conditions and facts concerning the Applicant, I judge that, in the event of his return to his country of origin, he could settle in the city of Mogadishu, as it is an area controlled by the legitimate government of the country, there is easy and direct access by air, and the Applicant has family members in the area (an uncle and grandmother on his mother’s side). Regarding the other family members, i.e., his mother, father, and his uncle on his father’s side, although the Applicant did not provide any evidence to demonstrate their death, I find that this is not a determining factor for the Court to decide in favor of his application for international protection. Therefore, there is no need to grant him subsidiary protection for any of the reasons listed in Article 19(2) of the Refugees Law."
Having outlined the facts of the case, we believe that what needs to be examined is whether the current information from reliable sources presented by the Appellant in the proceedings before us could be taken into account and, consequently, indicate a potential error by the first-instance Court in assessing the conditions, in order to decide whether the Appellant faces a real risk of persecution or serious harm.
According to Article 12G(3) of the Refugees Law of 2000 (Law 6(I)/2000), in examining the possibility of internal relocation for an applicant who has a well-founded fear of persecution or faces a real risk of serious harm, the Head of the Service "takes into account the circumstances prevailing in the said part of the country and the personal circumstances." For this purpose, "accurate and up-to-date information from relevant sources, such as the United Nations High Commissioner for Refugees and the European Union Agency for Asylum, is taken into account."
By analogous application, the Administrative Court of International Protection, which examines the substance of the applicant’s request for international protection within the framework of reviewing the correctness of the contested decision, takes into account or ought to take into account accurate and up-to-date information from relevant sources regarding the circumstances prevailing in the part of the country to which the applicant will relocate.
In this case, there is no doubt that the first-instance Court took into account data on the city of Mogadishu from reliable and accurate information sources. However, the Appellant also presented before us equally accurate and updated information, compared to what the first-instance Court considered, from reliable information sources, data which could not be ignored as they were presented to this Court for the purpose of assisting its work and do not lead to the introduction of evidence, as argued by the Respondent.
Relevant to this is the following excerpt from the decision of the Supreme Constitutional Court in Christiana Demetriou et al. and Leonidas Leonidou, Appeals against Decision of the Administrative Court No. 107/19 et al., dated 23/10/2024:
"Preliminary objection that the respondent seeks to introduce evidence circumventing the proper procedural process.
It was the position of the learned counsel for the applicant, within the framework of E.D.D. 112/19, that the respondent seeks, through her outline of arguments, to introduce evidence in a procedurally inadmissible manner.
In the outline of arguments of the respondent, three documents were indeed attached, which relate to the replacement of the General Director of the Ministry of Transport by the General Director of the Ministry of Finance, from 18.7.2016 to 2.7.2016. Specifically, [...]
The attachments in the outline of arguments of the respondent do not lead to the introduction of new evidence, as suggested by the counsel for the applicant, but were submitted before the Court to assist in its work. As mentioned, the replacement of the aforementioned Director emerges from the file documents submitted before the Supreme Court within the framework of the appeal."
We note that the material submitted by the Appellant, which has been drawn from reliable and up-to-date information sources, could not be ignored, as it may potentially establish an error in the judgment of the first-instance Court, which might have reached an erroneous understanding of the circumstances prevailing in Mogadishu. According to the case law, which is analogously relevant (see Yiannos Panayiotakis et al. (2017) 3 A.A.D.397):
"It is a well-established jurisprudential principle that even the likelihood of the correctness of a claim regarding an erroneous factual basis of the contested act, as well as the mere establishment of a potential error, is sufficient to annul it and have the matter re-examined by the competent administrative authority on its proper factual basis, free of the identified deficiencies."
We particularly focus on the Appellant’s reference to the report of the European Union Agency for Asylum titled "Country Guidance Somalia, June 2022," and the report of the United Nations High Commissioner for Refugees titled "International Protection Considerations with Regard to People Fleeing Somalia, September 2022," which were issued before the contested decision. According to these reports, relocation, even for an adult (as the Appellant was at the time of the issuance of the contested decision) to Mogadishu entailed risk, except in exceptional cases. Based on this, we judge that the first-instance Court did not take the above sources into account and therefore did not consider all the available parameters (during the substantive review it conducted) regarding the risk the Appellant would face if relocated to Mogadishu, resulting in the possibility of error, as indicated.
Additionally, the personal circumstances of the Appellant, as described above, regarding the adequacy of the support network, do not appear to have been sufficiently investigated in connection with whether the Appellant, upon relocation to Mogadishu, could reasonably be expected to lead a normal life, as provided for in the Guidelines of the UN High Commissioner for Refugees, which the first-instance Court cited (above).
Specifically, the first-instance Court, as a substantive review court under Article 11(3) of the Establishment and Operation of the Administrative Court of International Protection Law of 2018 (Law 73(I)/2018), is expected to re-examine the case based on data (concerning the Appellant personally and/or his country of origin) that are current in relation to the date of issuance of its forthcoming decision.
For the above reasons, the Appeal is accepted. The first-instance decision, in light of what has been stated, is set aside. The case is returned to the first-instance Court, which will examine the case under the above information.
An award of €3000 (plus VAT) is made in favour of the Appellant and against the Respondent
A. EFSTATHIOU-NIKOLETOPOULOU, J.
G. SERAFEIM, J.
D. LYSANDROU, J.
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