France – CNDA, 21 October 2017, Mme E., nº 16029780
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
In countries where there is a high prevalence of female genital mutilation (FGM), as in Nigeria, non-excised persons can be considered as having a well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention. Refugee status can be granted where there is a considerable risk of excision and insufficient protection against this threat.
Facts:
Miss E., of Nigerian nationality, was born in France in 2015. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected Mlle E.’s application for asylum on 25 August 2016. Before the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA), Ms. E. argued that Miss E. should be recognised as a refugee or, failing that, should be granted subsidiary protection. Ms. E. claims that upon returning to their country of origin, her daughter is to face the risk of persecution from her family due to her membership of the social group formed by young women who oppose female genital mutilation.
Decision & reasoning:
First the courts considered Article 1A(2) of 1951 Refugee Convention, which states that a refugee is any person who “owing to 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”. They also considered article of EU Directive 2011/95/UE which states a particular social group is classed as such when members of said group “share a characteristic or belief that is [..] fundamental to identity” and, that said group “is perceived as being different by the surrounding society.”
In this case the courts considered the social context in Nigeria, where FGM is highly prevalent, and accepted that non-excised children and teenagers constitute a social group. The Court concluded that the applicant must be considered as a member of the social group formed by young women who oppose female genital mutilation practiced in Nigeria. They considered the legitimacy of the threat against Miss E. and that rights to protection from the risk of persecution were supported by article L. 713-2 of the Code of the Entry and Stay of Foreigners and Asylum Law in France. The family’s geographical and ethnic background was considered, namely the real threat of excision that Miss E. would be subject to upon her return, as were all other girls in the family, and the rate of prevalence of excision – 41.6% - in the state of Edo, where Ms E. comes from.
Medical evidence was given to confirm Miss E. had not been excised and Ms. E.’s claims were checked for credibility against public records.
It was held that Miss E. sustained a credible threat of being excised were she to return to her country of origin, despite her mother’s opposition to the act. Their case was supported by the lack of protection available from state authorities and prospect of Ms. E.’s ostracism upon returning.
Outcome:
Refugee status was granted to Miss E, overturning the decision by Ofpra on 25 August 2016.
Observations/comments:
This case summary was written by Sarah Thurmer, student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.711-2 |
| Art L.712-1 |
| Art L. 713-2 |
| France - Law n° 91-647 of 10 July 1991 |
Other sources:
“Female genital mutilation / excision” United Nations International Children's Emergency Fund (UNICEF), 2 July 2013
Nigeria – Demographic and Health Survey 2013
“Female genital cutting in southern urban and peri-urban Nigeria: self-reported validity, social determinants and secular decline” Tropical Medicine and International Health, January 2002.