Germany - Administrative Court Stuttgart, 29 June 2006, A 11 K 10841
Keywords:
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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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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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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
This case concerned the application of Art 10.1 (d) of the Qualification Directive, as applied to lesbians from Iran. It was found that the "particular social group", described as homosexual (lesbian) women, has a distinct identity in Iran, because they are perceived as being different by the surrounding society (Art. 10.1 (d) (1) of the Qualification Directive).
Further, that there is a high likelihood that a homosexual relationship between women would be persecuted when detected, because it constitutes a breach of a cultural norm, even worse than among homosexual (gay) men.
Facts:
The applicant is an Iranian citizen, aged 27 years. In March 2003, she applied for asylum and refugee status. Her claim was based on her sexuality as a lesbian and her gender, as she felt like she was a man and people often mistook her as a man due to her appearance. As a result of this she did not wear a chador. Around three months before her departure, she was recognised as a woman by the Basidjis (volunteer reserve army) she was furnished with a chador, brought to the Basidjis women’s department (detention centre), insulted and taunted. The next day, she was released because her father left a bond on their house. She also had problems with a neighbour's husband who she had become friends with. He threatened her in the shop where she used to work as a sales assistant and on her way home from work.
Her application was dismissed. The applicant challenged this decision in the Administrative Court of Stuttgart.
Decision & reasoning:
Based on the applicant’s masculine appearance and her vivid explanation of her identity, including the problems and risks she faced in Iran, the court accepted that she belonged to a particular social group where members of that group share a characteristic that is so fundamental to their identify that a person should not be forced to renounce it. That group has such a distinct identity in Iran, because it is perceived as being different by the surrounding society (Art 10 (1) (d) (1) of the Qualification Directive). Whilst her homosexuality does not include acts considered to be criminal in accordance with national law of the EU Member States (Art 10 (1) (d) (3) of the Qualification Directive) it is a constituent element of her personality, which also includes her strong desire to dress and behave like a man, especially not to wear a chador, though she did not wish to undergo a sex reassignment surgery.
The court held that there is a high likelihood that a homosexual relationship among women would result in persecution when detected, because it constitutes a taboo in Iranian society which is even worse than it is for gay men. This applies even more to the applicant, since she is moving between gender and she would not be tolerated in the company of another woman, neither as an unmarried “man” nor as a masculine woman. The court added that this exposes her even more to danger.
Furthermore, the inhuman and degrading treatment or punishment (Art 9 (1) (a) of the Qualification Directive, Art 15 (2) and (3) of the European Convention on Human Rights (ECHR)) and the disproportionate or discriminatory prosecution or punishment (Art 9 (2) (c) of the Qualification Directive) of homosexuals is an act of persecution. The punishments for infringements of public morality in Iran are disproportionate and irrevocable as can be seen from religious "hadd-punishments".
Outcome:
The court ordered the authorities to grant refugee status.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - High Administrative Court Baden-Württemberg, 12 May 2005, A 3 S 358/05 - |