RSM v Chairperson of the State Agency for Refugees of the Council of Ministers, First instance decision, Administrative Case No 6303/2017, ILDC 3278 (BG 2017), 13th July 2017, Bulgaria; Sofia-Grad; City Court

F1  RSM, a minor, was an Iraqi national who belonged to the Yezidi minority. She entered Bulgaria and applied for asylum in May 2017.

F2  On 19 May 2017, the State Agency for Refugees of the Council of Ministers (‘SAR’) denied her asylum and humanitarian—subsidiary—protection.

F3  RSM appealed the SAR’s decision before the Administrative City Court of Sofia (‘ACCS’). RSM claimed that the SAR had failed to give her application a full and in-depth examination, as required by law, and that her status of belonging to a persecuted minority, the Yezidi, which increased her vulnerability, did not receive appropriate consideration.

F4  The SAR asserted that RSM did not provide sufficient evidence of having been persecuted or of being in danger of persecution if her request for asylum was denied. SAR also claimed that RSM could have relocated to a different part of her country of origin, where she would have found safety.

F5  Bulgaria became a member of the European Union in 2007, and therefore Directive 2011/95/EU of the European Parliament and of the Council 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 (13 December 2011) [2011] OJ L337/9, entered into force 2 January 2012 (‘EU Directive’) was applicable at the material time. Bulgaria acceded to the Convention relating to the Status of Refugees (28 July 1951) 189 UNTS 137; UN Reg No I-2545; [1954] ATS 5; Cmnd 9171, entered into force 22 April 1954 (‘Refugee Convention’) on 12 May 1993.

H1  The SAR’s decision with respect to the refusal of granting asylum was lawful. RSM’s testimony viewed in conjunction with the information on the country of origin did not reveal evidence of persecution. (paragraph 16)

H2  The decision of the SAR with respect to the denial of humanitarian protection, however, was unlawful. The SAR had distorted RSM’s testimony and had applied the country-of-origin data only partially and superficially. (paragraphs 16–20)

H3  Under Article 8(2) of the EU Directive, states were obliged to take into account the conditions of the relevant part of the country of origin and the individual circumstances of the applicant, in connection with Article 4 of the EU Directive. (paragraph 22)

H4  States parties were obliged to procure the most up-to-date and correct information from the relevant agencies, such as the United Nations High Commissioner for Refugees and the European Asylum Support Office. (paragraph 22) According to these sources, Iraq, the country of origin, was a place of danger to women and girls because of the presence of the threat of sexual violence and slavery, forced marriage, and trafficking. (paragraph 24) In addition, members of the Yezidi minority were subjected to discrimination, death threats, and other forms of oppression. (paragraph 29) Minority women and children were particularly vulnerable. [reference 7]

H5  In sum, the conditions in Iraq with respect to members of the Yezidi minority could amount to war crimes. (paragraph 34)

H6  There was enough evidence to support the position that, in the country of origin, the current armed conflict could be considered a state of ‘indiscriminate violence’ as established in Elgafaji and Elgafaji v Staatssecretaris van Justitie, Judgment, Case C-465/07; [2009] ECR I-921; ILEC 062 (CJEU 2009), 17 February 2009 and was of such nature to cause grave harm to RSM. (paragraph 39)

H7  Article 19(2) of the Charter of Fundamental Rights of the European Union (7 December 2000) [2000] OJ C364/1; [2007] OJ C303/1; [2012] OJ C326/391, entered into force 1 December 2009 was based on the case law of the European Court of Human Rights with respect to Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953 (‘ECHR’). It guaranteed non-refoulement when there was a real risk of treatment contrary to those articles of the ECHR. This protection was of a different nature than the protection from persecution provided by the Refugee Convention. (paragraph 43)

H8  RSM, a member of a persecuted minority group in Iraq, would be particularly vulnerable to the risk of inhuman and degrading treatment if she were to be returned to the country of origin. (paragraph 45)

H9  Based on the above, the decision of the SAR was overturned. The SAR was instructed to issue a new decision with respect to granting subsidiary protection to RSM. (paragraph 46)

A1  In this asylum case, characterized by the applicant’s multiple vulnerabilities, the Court employed an approach that was less common within established judicial practice: interpreting domestic substantive and procedural legislation to justify the introduction of international law instruments in support of its findings. (paragraphs 24–34)

A2  Typically, the courts relied solely on information that was submitted or requested by the parties and strictly observed the principles of judicial impartiality and equality of arms. In other words, in practice, it was the responsibility of the parties to initiate the introduction of evidence and arguments, and the courts could not interfere, even if the parties were not taking full advantage of the opportunities that were available to them through domestic and international law.

A3  This approach of non-interference had led, in the past decades, to the development of asylum case law that was formalistic, based predominantly on domestic law, and with very limited reliance on international instruments. It was case law that lacked diversity and experimentation.

A4  In contrast, the present decision relied heavily on international human rights instruments and case law, and even contained passages in the English language, quoting directly up-to-date recommendations issued by authoritative sources in the areas of asylum and human rights. The passages in English were translated personally by the presiding judge, added to the text of the judgment, and used in support of the judge’s position that RSM should not be denied subsidiary protection because her vulnerable status as a child, a female, and a Yezidi greatly increased the risk of her becoming a victim of gross violations of human rights, if she were to return to her country of origin.

A5  This decision also revealed another rare feature within Bulgarian judicial practice: it appeared that the judge acted fully sua sponte in the development of the vulnerability argument with respect to RSM. The basic claims underlying this argument were presented by RSM’s defence: the fact that she was a minor and a Yezidi. However, the legal justification for why RSM deserved to be granted subsidiary protection seemed to have been constructed by the Court on its own initiative.

A6  This decision followed a trend then currently emerging in the areas of immigration and asylum in European jurisdictions. Socio-legal scholars observed that the intensifying debates over Europe’s changing demographic makeup and the demands for new approaches to its immigration policy were affecting the behaviour of judicial systems, which were struggling to accommodate modern claims (see L Vetters, ‘Aspirations of legal concord in asylum appeal hearings. Rule of law practices among administrative judges and their wider perception in public debates about migration and the rule of law in Germany’, paper presented at the Socio-Legal Perspectives on the Rule of Law Conference of the Vereinigung für Recht & Gesellschaft, Frankfurt (Oder), Germany, 26–27 November 2020). Judges were experiencing a growing tension caused by their humanitarian awareness, the increasing close encounters with populations escaping war and violence, and the constraints of substantive and procedural rules, within which they were bound by the rule of law to operate. As a result, similarly to the present case, European adjudication showed evidence of attempts to find new routes to case-processing that could respond better to the reality on the ground.

A7  The decision under discussion was appealed by the SAR, and was overturned by the Supreme Administrative Court (‘SAC’) on procedural grounds: Chairperson of the State Agency for Refugees of the Council of Ministers v RSM, Appeal decision of the Supreme Administrative Court of Bulgaria, Administrative Case No 9066/ 2017, 3 July 2018. The SAC considered that the use of foreign language in the ACCS’s decision without appropriate translation was in violation of domestic law on evidence and use of language in court. This decision of the SAC became final, and, therefore, the SAR’s refusal to grant RSM asylum or subsidiary protection came into force.

A8  Although the instant decision represented a very small number of judicial acts produced by Bulgarian courts to date, it pointed to a visible shift within accepted judicial behaviour and in the interpretation of domestic and international law, which marked an irreversible change towards a more diverse and a more innovative—self—perception of the role of the judiciary, and of the purpose of law, with respect to the new demands of a more complex Europe.