ON APPEAL FROM
the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Clive Lane
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
| The Secretary of State for the Home Department
|- and -
Daniel Sills (instructed by JD Spicer Zeb) for the Respondent
Hearing dates : 17 April 2018
Crown Copyright ©
LADY JUSTICE ARDEN :
Issues for Determination and Summary of Conclusions
(1) A cessation decision is the mirror image of a decision determining refugee status. By that I mean that the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist. Thus, the relevant question is whether there has been a significant and non-temporary change in circumstances so that the circumstances which caused the person to be a refugee have ceased to apply and there is no other basis on which he would be held to be a refugee. The recognising state does not in addition have to be satisfied that the country of origin has a system of government or an effective legal system for protecting basic human rights, though the absence of such systems may of course lead to the conclusion that a significant and non-temporary change in circumstances has not occurred.
(2) It is not appropriate to refer this matter to the CJEU for a preliminary ruling.
(3) The question whether Article 3 would be violated by the refugee's return to his country of origin is not part of the cessation decision but separate from it, and there is no violation by reason only of the absence of humanitarian living standards on return.
(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.
(5) The Tribunals did not apply the right test for an appeal against a cessation decision.
(6) The matter should be remitted to the FTT on the basis that some factual findings are not preserved.
The Qualification Directive
History of respondent's refugee status
due to the absence of functioning structures in parts of Somalia the clans and their elders have regained a political function and a substantial influence on the organisation of society. However, clans have no centralised administration or government. During the civil war in Somalia, clan elders increasingly became targets of violence, which eroded their power, nevertheless they still have a significant influence on society and politics.
(The civil war affected Mogadishu until at least 2011). The report later stated that the clan relationship was regulated by Somali customary law, known as xeer, which is used to govern communities. According to the Home Office report, citing a January 2015 Minority Rights Group International report, in some cases, the clan may provide a social security welfare system for its members.
MOJ: The Upper Tribunal's most recent country guidance decision on Mogadishu, showing changed circumstances
406. We consider, in the light of the evidence as a whole, that the position as set out by UNHCR in its report published on 25 September 2013 continues to reflect an appropriate starting point today, upon which to build in the light of our review of the up to date evidence:
With regard to Mogadishu, the personal circumstances of an individual need to be carefully assessed. UNHCR considers an IFA/IRA as reasonable only where the individual can expect to benefit from meaningful nuclear and/or extended family support and clan protection mechanisms in the area of prospective relocation. When assessing the reasonableness of an IFA/IRA [internal flight option/internal relocation alternative] in Mogadishu in an individual case, it should be kept in mind that the traditional extended family and community structures of Somali society no longer constitute as strong a protection and coping mechanism in Mogadishu as they did in the past. Additionally, whether the members of the traditional networks are able to genuinely offer support to the applicant in practice also needs to be evaluated, especially given the fragile and complex situation in Mogadishu at present.
For the following categories of Somalis, UNHCR would consider that an IFA/IRA will not be reasonably available in the absence of meaningful nuclear and/or extended family support and functioning clan protection: unaccompanied children or adolescents at risk of forced recruitment and other grave violations; young males at risk of being considered Al Shabaab sympathizers and therefore facing harassment from government security forces; elderly people; people with physical or mental disabilities; single women and female single heads of households with no male protection and especially originating from minority clans. In any other exceptional cases, in which the application of an IFA/IRA in Mogadishu is considered even in the absence of meaningful family or clan support to the individual, the person would need to have access to infrastructure and livelihood opportunities and to other meaningful protection and support mechanisms, taking into account the state institutions' limited ability to provide security and meaningful protection.
407. Distilled to its essence, and on the basis of all the evidence before us, we give the following country guidance:
a. Generally, a person who is "an ordinary civilian" (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 15(c) of the Qualification Directive or Article 3 of the ECHR. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.
b. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM .
c. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab's resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.
d. It is open to an "ordinary citizen" of Mogadishu to reduce further still his personal exposure to the risk of "collateral damage" in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to be expected to do so.
e. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including recent returnees from the West.
f. A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.
g. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assistance with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.
h. If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:
(i) circumstances in Mogadishu before departure;
(ii) length of absence from Mogadishu;
(iii) family or clan associations to call upon in Mogadishu;
(iv) access to financial resources;
(v) prospects of securing a livelihood, whether that be employment or self-employment;
(vi) availability of remittances from abroad;
(vii) means of support during the time spent in the United Kingdom;
(viii) why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.
Put another way, it will be for the person facing return to Mogadishu to explain why he would not be able to access the economic opportunities that have been produced by the "economic boom", especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.
408. It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.
Secretary of State's cessation decision
Decision of the FTT
Decision of the Upper Tribunal
7. Because he went on subsequently to find that the appellant would, in effect, be destitute upon return to Somalia, the judge has (perhaps understandably) not dealt with the issue in and depth. I have to say, however, that I accepted the force of Mr Sills' submissions (made before both Tribunals) that the appellant's criminal offending was not a reason to bring his refugee status to an end and, further, that the requirements set out in the UNHCR Guidelines on International Protection No. 3: Cessation and Refugee Status are clearly not established in the case of Somalia, a geographical area which continues to have no proper functioning unitary government or system of law and justice. It remains difficult to see how the cessation of the appellant's refugee status can have been made in accordance with those guidelines and also the decision in Abdulla (C-175/08 .
UNHCR Guidelines on the Ceased Circumstances Clauses
Cessation based on "ceased circumstances" therefore only comes into play when changes have taken place which address the causes of displacement which led to the recognition of refugee status. (paragraph 10)
"15. In determining whether circumstances have changed so as to justify cessation under Article 1C(5) or (6), another crucial question is whether the refugee can effectively re-avail him- or herself of the protection of his or her own country. Such protection must therefore be effective and available. It requires more than mere physical security or safety. It needs to include the existence of a functioning government and basic administrative structures, as evidenced for instance through a functioning system of law and justice, as well as the existence of adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood.
16. An important indicator in this respect is the general human rights situation in the country. Factors which have special weight for its assessment are the level of democratic development in the country, including the holding of free and fair elections, adherence to international human rights instruments, and access for independent national or international organisations freely to verify respect for human rights. There is no requirement that the standards of human rights achieved must be exemplary. What matters is that significant improvements have been made, as illustrated at least by respect for the right to life and liberty and the prohibition of torture; marked progress in establishing an independent judiciary, fair trials and access to courts: as well as protection amongst others of the fundamental rights to freedom of expression, association and religion. Important, more specific indicators include declarations of amnesties, the repeal of oppressive laws, and the dismantling of former security services.
Adequacy of Secretary of State's grounds of appeal to the Upper Tribunal
11. In these circumstances, it is respectfully submitted that the Judge's conclusion that the appellant continues to qualify as refugee discloses failures to adequately resolve material conflict in the evidence; and amounts to material legal misdirection and failure to provide adequate reasons for dispositive findings.
Submissions on the cessation decision and Article 3
For the purposes of the present Convention, the term "refugee" shall apply to any person who… owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
This Convention shall cease to apply to any person falling under the terms of section A if:
…(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality…
26. Paragraph 407(a) to (e) are directed to the issue that arises under article 15(c) of the Qualification Directive. Sub-paragraphs (f) and (g) establish the role of clan membership in today's Mogadishu, and the current absence of risk from belonging to a minority clan. Sub-paragraph (h) and paragraph 408 are concerned, in broad terms, with the ability of a returning Somali national to support himself. The conclusion at the end of paragraph 408 raises the possibility of a person's circumstances falling below what "is acceptable in humanitarian protection terms." It is, with respect, unclear whether that is a reference back to the definition of "humanitarian protection" arising from article 15 of the Qualification Directive. These factors do not go to inform any question under article 15(c). Nor does it chime with article 15(b), which draws on the language of article 3 of the Convention, because the fact that a person might be returned to very deprived living conditions, could not (save in extreme cases) lead to a conclusion that removal would violate article 3.
27 The Luxembourg Court considered article 15 of the Qualification Directive in Elgafaji v Staatssecretaris van Justitie  1 WLR 2100 and in particular whether article 15(c) provided protection beyond that afforded by article 3 of the Convention. The answer was yes, but in passing it confirmed that article 15(b) was a restatement of article 3. At para  it said:
In that regard, while the fundamental right guaranteed under Article 3 of the ECHR forms part of the general principles of Community law, observance of which is ensured by the Court, and while the case-law of the European Court of Human Rights is taken into consideration in interpreting the scope of that right in the Community legal order, it is, however, Article 15(b) of the Directive which corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR , and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR .
28 In view of the reference in the paragraph immediately preceding para 407 to the UNHCR evidence, the factors in paras 407(h) and 408 are likely to have been introduced in connection with internal flight or internal relocation arguments, which was a factor identified in para 1 setting out the scope of the issues before UTIAC. Whilst they may have some relevance in a search for whether a removal to Somalia would give rise to a violation of article 3 of the Convention, they cannot be understood as a surrogate for an examination of the circumstances to determine whether such a breach would occur. I am unable to accept that if a Somali national were able to bring himself within the rubric of para 408, he would have established that his removal to Somalia would breach article 3 of the Convention. Such an approach would be inconsistent with the domestic and Convention jurisprudence which at para 34 UTIAC expressly understood itself to be following.
 The law relating to the reach of art 3 in preventing removal of foreign nationals from the United Kingdom is well settled. It was most recently reviewed in this court by Laws LJ in GS (India) v. Secretary of State for the Home Department  EWCA Civ 40;  1 WLR 3312 with whom Sullivan LJ agreed on this aspect. Underhill LJ agreed expressly with Laws LJ's analysis of the Strasbourg authorities of MSS v Belgium & Greece 53 EHRR 28, Sufi and Elmi v United Kingdom 54 EHRR 209, SHH v United Kingdom (2013) 57 EHRR 531 and Tarakhel v Switzerland App No 29217/12 between paras 54 and 62 of his judgment. I shall return shortly to these cases.
 The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than "health tourists". The House of Lords had held in N v Secretary of State for the Home Department  2 AC 296 that art 3 of the Convention did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that art 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N's condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where art 3 would prevent her removal.
 The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom (1997) 24 EHRR 423 where the proposed removal of a man to St Kitts was held to violate art 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords' decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para . It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short:
i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3;
ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling;
iii) The circumstances of D's case provided such exceptional and compelling circumstances.
iv) There may other exceptional cases but the high threshold should be maintained because "the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it;
v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment;
vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.
 The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which art 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in art 3 cases.
 In the MSS case the Strasbourg Court decided that Belgium would violate the art 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:
"If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state's lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab's refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation."
Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed.
 In para 57 of the GS case, Laws LJ described this as a "fork in the road, on the court's own approach" between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied.
 These cases demonstrate that to succeed in resisting removal on art 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.
submissions on the tribunals' reasoning
(1) Abdulla: cessation of refugee status under the QD involves an individualised and not a generalised evaluation of the changed conditions in the country of origin; the ultimate question under the ceased circumstances clause is simply whether any fear for a Refugee Convention reason has ceased to exist
73 The change of circumstances will be of a "significant and non-temporary" nature, within the terms of article 11(2) of the Directive, when the factors which formed the basis of the refugee's fear of persecution may be regarded as having been permanently eradicated…
65 Article 11(1)(e) of the Directive, in the same way as article 1C(5) of the Geneva Convention, provides that a person ceases to be classified as a refugee when the circumstances as a result of which he was recognised as such have ceased to exist, that is to say, in other words, when he no longer qualifies for refugee status.
66 By stating that, because those circumstances "have ceased to exist", the national "can no longer … continue to refuse to avail himself or herself of the protection of the country of nationality", that article establishes, by its very wording, a causal connection between the change in circumstances and the impossibility for the person concerned to continue to refuse and thus to retain his refugee status, in that his original fear of persecution no longer appears to be well founded.
67 In so far as it provides that the national "can no longer … continue to refuse" to avail himself of the protection of his country of origin, article 11(1)(e) of the Directive implies that the "protection" in question is the same as that which has up to that point been lacking, namely protection against the acts of persecution envisaged by the Directive.
68 In that way, the circumstances which demonstrate the country of origin's inability or, conversely, its ability to ensure protection against acts of persecution constitute a crucial element in the assessment which leads to the granting of, or, as the case may be, by means of the opposite conclusion, to the cessation of refugee status.
69 Consequently, refugee status ceases to exist where the national concerned no longer appears to be exposed, in his country of origin, to circumstances which demonstrate that that country is unable to guarantee him protection against acts of persecution against his person for one of the five reasons listed in article 2(c) of the Directive. Such a cessation thus implies that the change in circumstances has remedied the reasons which led to the recognition of refugee status.
70 In order to arrive at the conclusion that the refugee's fear of being persecuted is no longer well founded, the competent authorities, by reference to article 7(2) of the Directive, must verify, having regard to the refugee's individual situation, that the actor or actors of protection of the third country in question have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status.
71 That verification means that the competent authorities must assess, in particular, the conditions of operation of, on the one hand, the institutions, authorities and security forces and, on the other, all groups or bodies of the third country which may, by their action or inaction, be responsible for acts of persecution against the recipient of refugee status if he returns to that country. In accordance with article 4(3) of the Directive, relating to the assessment of facts and circumstances, those authorities may take into account, inter alia, the laws and regulations of the country of origin and the manner in which they are applied, and the extent to which basic human rights are guaranteed in that country.
72 Furthermore, article 11(2) of the Directive provides that the change of circumstances recorded by the competent authorities must be "of such a significant and non-temporary nature" that the refugee's fear of persecution can no longer be regarded as well founded.
73 The change of circumstances will be of a "significant and non-temporary" nature, within the terms of article 11(2) of the Directive, when the factors which formed the basis of the refugee's fear of persecution may be regarded as having been permanently eradicated. The assessment of the significant and non-temporary nature of the change of circumstances thus implies that there are no well-founded fears of being exposed to acts of persecution amounting to severe violations of basic human rights within the meaning of article 9(1) of the Directive.
74 It must be pointed out that the actor or actors of protection with respect to which the reality of a change of circumstances in the country of origin is to be assessed are, under article 7(1) of the Directive, either the state itself or the parties or organisations, including international organisations, controlling the state or a substantial part of the territory of the state.
75 As regards the latter point, it must be acknowledged that article 7(1) of the Directive does not preclude the protection from being guaranteed by international organisations, including protection ensured through the presence of a multinational force in the territory of the third country.
76 In view of all the foregoing considerations, the answer to the first question is that article 11(1)(e) of the Directive is to be interpreted as meaning that (i) refugee status ceases to exist when, having regard to a change of circumstances of a significant and non-temporary nature in the third country concerned, the circumstances which justified the person's fear of persecution for one of the reasons referred to in article 2(c) of the Directive, on the basis of which refugee status was granted, no longer exist and that person has no other reason to fear being "persecuted" within the meaning of article 2(c) of the Directive; (ii) for the purposes of assessing a change of circumstances, the competent authorities of the member state must verify, having regard to the refugee's individual situation, that the actor or actors of protection referred to in article 7(1) of the Directive have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and that the national concerned will have access to such protection if he ceases to have refugee status; (iii) the actors of protection referred to in article 7(1)(b) of the Directive may comprise international organisations controlling the state or a substantial part of the territory of the state, including by means of the presence of a multinational force in that territory.
(2) A cessation decision does not involve the question whether Article 3 would be violated
(3) No need for a reference to the CJEU for a preliminary ruling
(4) Whether the risk of deprivation on return would lead to a violation of Article 3 of the Convention
(5) Reasoning of the Tribunals was erroneous in law and in the case of the FTT the fact-finding proceedings was defective in law because it was incomplete
(6) Appropriate disposal of appeal: allowing of the appeal and remittal to the FTT
LORD JUSTICE PETER JACKSON :
on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
(10) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.
For the purposes of this Directive:
(c) 'refugee' means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;
3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;
b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;
c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;
d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;
e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.
1. Protection can be provided by:
a) the State; or
b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State
2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
1. A third country national or a stateless person shall cease to be a refugee, if he or she:
(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality;
2. In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.
1. Serious harm consists of:
a) death penalty or execution; or
b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations or international or internal armed conflict
1. A third country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.