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Tag: Asylum

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 CAA de Bordeaux, 2ème chambre, 20BX02193, 20BX02195

Date: 18 December 2020

Court: Court of Administrative Appeal of Bordeaux 

Citations: N° 20BX02193, 20BX02195

Short summary  

In this judgement, the Court overturned the deportation order issued by the French department, Prefect of Haute-Garonne (“Prefect”), against Mr. Sheel on the grounds that it would subject him to a real risk of harm and even death given the high levels of air pollution in Bangladesh and the lack of access to adequate health care services, medication, and respiratory assistance equipment. 

Summary by: Jodie Tang 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

Though an individual judgment, this decision holds immense weight in France because it was the first time the courts extended protection to someone fearful of returning home due to environmental conditions.  

Key facts 

Mr. Sheel, a name given to him by the media, is a Bangladeshi national who entered France in 2011 and lodged an asylum application. His application was rejected in 2013, but he was granted a temporary residence permit due to his state of health from 2015 to 2017. In June 2019, the Prefect refused to renew his residence permit and required Mr. Sheel to leave France within 30 days and return to Bangladesh. This decision was overturned by the Administrative Court of Toulouse, which was appealed by the Prefect to the Court of Administrative Appeal of Bordeaux. 

Mr. Sheel suffers from a severe form of asthma and sleep apnea. Throughout his cases, however, the Prefect argued that medical evidence submitted by Mr. Sheel was inadequate to establish that he would not receive appropriate healthcare services in Bangladesh to treat his respiratory disease. He responded that, regardless of where he lived in Bangladesh, he would be unable to access appropriate medication, could not operate respiratory assistance devices in Bangladesh’s hot climate, and would have difficulty avoiding harmful air pollution.

Previous instances

On 15 June 2020, the Administrative Court of Toulouse annulled the decree of 18 June 2019 issued by the Prefect, where he refused to renew Mr. Sheel’s residence permit, ordered him to leave France and return to Bangladesh. The Court also overturned the decision of 5 August 2019 by the Prefect where he refused to grant Mr. Sheel’s request for family reunification with his wife. The Court ordered the Prefect to grant Mr. Sheel a residence permit pursuant to provision 11° of Article L.313-11 of the Code for the Entry and Residence of Foreigners and the Right to Asylum (“Provision 11”) and ordered the State to pay 1,500€ to Mr. Sheel’s counsel.  

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Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

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AL v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Date of judgement: 10 May 2012

Court: European Court of Human Rights

Citation(s): A.L. v. Austria, Appl. No. 7788/11, Council of Europe: European Court of Human Rights, 10 May 2012

Short summary 

The European Court of Human Rights (ECtHR) reiterated the obligation of Contracting States to protect individuals from deportation which would place them at risk of treatment contrary to Art. 3 of the European Convention on Human Rights (prohibition of torture or to inhuman or degrading treatment or punishment), noting that Contracting States retained the right to control the entry and expulsion of aliens and that there was no obligation to grant political asylum. The ECtHR stressed that to have an indication as to whether an expulsion would violate Art. 3, from now on, an assessment of the situation in the country would have to be carried out, as the historical situation would offer little more than some help towards understanding the present conditions.

Summary by: Yusuf Lahham

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 of the European Convention on Human Rights (ECHR). 

Key facts

A Togolese national (“the applicant”) brought a case against the Republic of Austria seeking to overturn the decisions of the Federal Asylum Office and the Asylum Court in denying him asylum claim and ordering his return to Togo. As a member of the prominent opposition political party, Union des Forces de Changement (UFC), the applicant alleged that upon his return, he would face a risk of being subjected to treatment contrary to Art. 3. 

In addition to this, he claimed that he had been threatened by soldiers in Togo during protests organised in a camp for flood victims due the unequal distribution of relief. The applicant further claimed that another Togolese national (“M.A”) had been granted asylum, relying on very similar evidence to that which had been put forward in his application. He argued that on the basis of M.A’s application result, he too should be granted asylum.

Previous instances 

On 6 July 2009, the applicant’s request for asylum and subsidiary protection was denied by the Federal Asylum Office on the basis that his submission of fear and persecution was not credible and appeared to be a fabrication around what had really happened. The Office noted that parliamentary elections had taken place in 2007, with the UFC winning 27 seats, and that although Togo could not be considered a representative democracy, opposition parties were generally free to act. The Office went on to conclude that whilst the applicant had been truthful regarding his account of the flood and the tensions between soldiers within the flood victim camp, the alleged threats and the applicant’s subsequent fear was contradictory to the applicant’s statements. 

In light of the above, the Office rejected the application for asylum and subsidiary protection on the grounds that the persecution awaiting the applicant in Togo was nothing more than speculation on his part, and that there would be no risk of persecution as recognised under Art. 1(A)(2) of the 1951 United Nations Convention Relating to the Status of Refugees. 

On 29th April 2010, the Asylum Court held a hearing to address the applicant’s appeal, which was based upon the following grounds: that he was unaware of the possibility of submitting more than three pieces of evidence, he had issues understanding the interpreter and as such had not given a full account of police violence towards him at the camp, that members of the UFC were still subject to persecution notwithstanding the 2007 parliamentary elections, and that M.A, another organiser of the demonstrations had been granted asylum. The Court held that the applicant’s statements were contradictory and not due to any translation errors. It was also found that the evidence put forward appeared to be fabricated and that no actual violence towards his person had occurred at the camp. The court ordered his expulsion to Togo, and dismissed his claim. 

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Refugee Review Tribunal of Australia 1168 

Date: 10 December 2009  

Court: Refugee Review Tribunal of Australia

Citation(s): 0907346 [2009] RRTA 1168

Short summary 

Australia does not have an obligation to accept climate migrants with no fear of specific persecution in their home country as refugees under its domestic adoption of the Refugee Convention. 

Summary by: Lucas Robinson  

Link to Original Judgement

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Weight of decision 

This decision of the Refugee Review Tribunal of Australia bears moderate weight in immigration cases in the Commonwealth of Australia. 

Key facts 

The applicant was a citizen of Kiribati who arrived in Australia in 2007 and applied for a Protection visa under §65 of the Migration Act 1958 in May 2009. The application was denied by a delegate of the Minister for Immigration and Citizenship in August 2009. 

The applicant claimed that the environmental and economic changes in Kiribati caused by rising sea levels made it impossible for him to earn a living there. In his application, he claimed that some of the islands in Kiribati had already disappeared, and saltwater was springing up through the ground and spoiling the drinking well water, as well as devastating food crops. The applicant’s health had been directly impacted because of the loss of food crops on Kiribati.  

The applicant submitted that these impacts on him constituted persecution that should trigger protections under the 1951 Refugee Convention and the Migration Act 1958.  

Previous instances

The application for review by the RRTA was sought after the decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection Visa under §65 of the Migration Act 1958. 

Summary of holding 

The RRTA affirmed the Minister’s decision not to grant the applicant a Protection Visa, finding that in the absence of a discriminatory motivation, Australia’s protection obligations were not triggered. The Tribunal held found that the continued production of carbon emissions that cause climate change is not sufficient to constitute persecution under the Refugee Convention as there was no evidence that the persecution the applicant was fearing was occurring because of his membership to any particular group (or any other protected ground for refugee status). People affected by climate change were not recognized as a cognizable group of people in need of protection. Because the applicant was not part of a particular group, he did not fit the convention definition of a refugee. 

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N v. United Kingdom, Application No. 26565/05

Date of judgement: 27 May 2008

Court: European Court of Human Rights

Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008

Short summary 

The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV. 

Summary by: Claudia Broadhead

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion. 

Key facts

The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).

The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices. 

Summary of holding

The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering. 

The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42). 

In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.

Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction. 

If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely. 

Potential takeaways for future climate migration litigation

  • Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts. 
  • This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium. 
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Montenegro v. Ashcroft

Date: 16 May 2002

Court: United States Court of Appeals, Third Circuit

Citation: 68 Fed. Appx. 290

Short summary  

A Guatemalan man petitioned for asylum in the United States after suffering persecution attributed to his labour union activity. An immigration judge found his testimony credible and granted the man and his family asylum, a decision ultimately upheld by a federal appeals court.

Summary by: Elisa D’Amico

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is a binding part of the asylum case law developed in the Third Circuit (Delaware, New Jersey, Pennsylvania). Courts outside of the Third Circuit – including immigration and other federal courts – may find the case’s reasoning persuasive when evaluating similar asylum claims.

Key facts 

Werner Montenegro, born in Guatemala on in 1951 and began working as an agricultural internal auditor for a semi-public wheat growers association in 1982. During this period, Montenegro and others organized a labor union, which faced opposition from management led by Carlos Pac. He claimed to have faced assaults and threats in Guatemala due to his involvement in labor union activities, driven by economic scarcity in his sector.

Previous instances  

Immigration Judge Alberto Riefkohl found Montenegro’s testimony credible and granted him, along with his wife and son, asylum, recognizing their need for protection from “a group that the government is unwilling or unable to control.” However, the Board of Immigration Appeals (BIA) overturned the Judge’s decision, contending that the harm the family suffered did not meet the threshold for persecution.

Summary of holding 

On Montenegro’s appeal of the BIA decision, a panel of judges on the Third Circuit conducted a thorough examination of Montenegro’s testimony and supporting evidence. Based on evidence of past persecution linked to Montenegro’s labor union involvement, the court concluded that his claim was well-founded and merited protection under asylum laws. The case was remanded back to the Immigration Judge, directing him to grant asylum to Montenegro and his family.

The Third Circuit found that the BIA’s decision lacked proper support from the record, and its characterization of the evidence as “vague” was unjustified. For example, the court highlighted the attack on Mrs. Montenegro, Werner’s wife, which involved threats and physical violence in the presence of their young daughter. The court found this incident to be especially concerning and constituting persecution under the law.

Furthermore, the court explained that once an applicant demonstrates past persecution, as Werner Montenegro did, there is a presumption of a well-founded fear of persecution. The BIA failed to rebut this presumption with evidence showing a fundamental change in circumstances or the possibility of avoiding persecution through relocation. Thus, Montenegro’s eligibility for asylum was firmly established.

Therefore, the court vacated the BIA’s order and remanded the case for the Immigration Judge to grant the application for asylum. The court’s decision ensured that the Montenegro family received the protection they sought, recognizing the persecution they endured in their home country related to Montenegro’s sectoral efforts.

Potential takeaways for future climate migration litigation 

  • Montenegro v. Ashcroft may set precedent for asylum claims based on climate-induced poverty and violence. It recognizes the link between economic migration and persecution, allowing individuals to be granted asylum based on sector- or work-related persecution. This case highlights the significance of considering economic aspects in asylum cases, especially in regions facing resource scarcity and escalating tensions attributable to climate change.
  • As climate change worsens, placing increased pressure on the agricultural sector, this case may gain greater significance for individuals seeking asylum based on persecution associated with their sectoral involvement. By recognizing the impending stress on agricultural sector workers, the case sets a vital standard for courts to consider when evaluating the challenges faced by those displaced within this sector. For example, agricultural workers may confront heightened violence and persecution as a result of escalating resource competition driven by climate change. Challenges also extend to women engaged in informal agricultural work, who find themselves uniquely susceptible to exploitation and harassment amid climate-related internal displacement. Moreover, as climate change renders certain work and livelihoods unmaintainable, climate-afflicted migrants often find themselves moving as economic migrants, seeking alternative opportunities due to the adverse effects of climate change on their traditional occupations.
  • Advocates should also take note of how small-scale and Indigenous farmers face heightened persecution in the context of climate change, leveraging this and similar cases to advocate for more comprehensive asylum frameworks which recognize the nuanced ways environmental degradation, economic precarity, and pre-existing social vulnerabilities contribute to persecution.
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