Prolonged residence at IDP camp does not constitute a ground for rejecting asylum

IDP camps cannot be considered as safe haven from violence and persecution. A standard approach of assessing asylum applications must be set to determine the place of origin/place of former habitual residence prior to displacement.

UNHCR’s Guidelines on International Protection No. 12 underlines that the presence of internally displaced persons, including those who are receiving international assistance, in one part of the country, is not necessarily evidence of the reasonableness of a proposed internal flight or relocation alternative in that part of the country. Internally displaced persons often do not enjoy basic rights and may face economic destitution or existence below an adequate level of subsistence, which would be evidence of the unreasonableness of the proposed internal flight or relocation alternative. It is also necessary to consider the capacity of local authorities to provide protection against harm, as well as whether human rights, particularly non-derogable rights, are respected. Further, in many situations, internal displacement may be the result of ethnic cleansing policies, or similar, in violation of the prohibitions on forcible transfer and arbitrary displacement under IHL in the context of an armed conflict. In such circumstances, an internal flight or relocation alternative should not be presumed to exist.

In the Letter to the Court in case D v. the Netherlands of 3 June 2019, UNHCR underlines in relation to Iraqi nationals from the Sinjar District adhering to the Yazidi faith whose asylum applications have been rejected on the basis that a camp for internally displaced persons in the Kurdistan Region of Iraq was determined to be their last place of residence that: “UNHCR does not consider internally displaced persons’ camps in the Kurdistan Region of Iraq (KR-J), as places of permanent settlement/habitual (place of) residence […] or places which represent internal flight alternatives.” This analysis is not unique to Iraqi Kurdistan. It applies to lDP camps in many countries affected by conflict. The high risks IDPs are exposed to have been recorded in other countries such as Syria where camps being often attacked by military forces, or Nigeria where IDP are constantly exposed to military attacks by Boko Haram, or Bangladesh where Rohingya Muslim refugees face threat from terrorist groups and reoccurring plans of forced return to Myanmar.

As a general rule, public authorities have a duty to prove that they had been as strict as possible to examine carefully the claims based on Article 3 of European Convention of Human Rights assessing claims for international refugee protection. This means that the national authorities have to remove all doubts as to the unreasonableness of the protection request. Given the importance of Article 3 of the ECHR and the irreparable harm that may result from a violation of it, Article 13 of the ECHR requires that any application which indicates a risk that an applicant who is expelled will be subject to treatment contrary to Article 3 of the ECHR be subjected to a careful examination and to an independent and rigorous investigation (e.g. M.S.S. v. Belgium and Greece (30696/09), paragraphs 293 and 387; F.N. and Others v. Sweden (52589/13, paragraph 66); M.A. v. Switzerland (52589/13),  paragraphs 52 and 53).

This also applies to individuals whose former residence was in a transit country. Article 33 of Directive 2013/32/EU on common procedures must be interpreted as precluding national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which that person was not exposed to persecution or a risk of serious harm (See joint EUCJ cases C‑924/19 and C‑925/19).

Situations of armed conflict and violence frequently involve exposure to serious human rights violations or other serious harm amounting to persecution. Such persecution could include, but is not limited to, situations of genocide and ethnic cleansing; torture and other forms of inhuman or degrading treatment; rape and other forms of sexual violence; forced recruitment, including of children; arbitrary arrest and detention; hostage taking and enforced or arbitrary disappearances; and a wide range of other forms of serious harm resulting from circumstances mentioned. Living in IDP camps proves in most cases is the consequence of such exposure.  In situations of armed conflict and violence, the usual prerequisite of IDP camps, the assessment of the asylum claims should take into consideration threats at the place of origin/place of former habitual residence prior to displacement, the IDPs camps should not be treated as safe haven for victims of persecution.




Konstitucijos pr. 7, Vilnius LT-09308