Brussels, 18/02/2009 (Agence Europe) - If there is indiscriminate violence in the country of origin of an asylum seeker, he/she may not be required to prove that he/she would face a real risk of being subject to serious and individual threat. That is the finding of the Court of Justice in a judgment delivered on Tuesday 17 February, in a case involving a couple seeking asylum in the Netherlands (case C-465).
The Court's response to the Dutch Raad van State, then, is that Meki and Noor Elgafaji can base their asylum request on the level of violence in Iraq, their country of origin. The European Court believes that, in certain circumstances of indiscriminate violence, there may be a serious risk to the asylum seeker without it being necessary that “the applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances”.
Mr Elgafaji is an Iraqi Shiite, his wife is Sunni. In addition, Mr Elgafaji was formerly employed by a British security company at Baghdad Airport. Their background, then, makes the couple possible targets for sectarian elements within the various militias operating in Iraq.
The judgment sheds light on directive 2004/83/EC on refugees, the provisions of which are often interpreted in different ways, according to some observers. Article 15 (c) of the directive lists, among the conditions which can justify the granting of refugee status, “serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. This definition contains “inherent contradictions”, says Kris Pollet of the European Asylum Policy Section at Amnesty International. “How can a threat be individual if the violence in question is indiscriminate?” he asks. While giving a general welcome the Court judgment, he notes that it still does not define “indiscriminate violence”. “The Court could bring in a higher threshold” to define the situation, he warned.
Interpretation of indiscriminate violence varies from one member state to another, particularly violence in Iraq, which is not recognised by all as being the scene of “international or internal armed conflict”, in the words of the directive. Of the 400,000 Iraqi asylum seekers in the European Union in 2007, half travelled to Sweden to take advantage of a more favourable interpretation of this clause by the authorities. At the end of 2008, Sweden reviewed its classification of Iraq which it now considers no longer to be in a situation of armed conflict. (C.D./transl.rt)