Belgium - X v. Commissioner-General for Refugees and Stateless Persons, 26 November 2019, N° 229 288
| Country of Decision: | Belgium |
| Country of applicant: | Ivory Coast |
| Court name: | Council for Alien Law Litigation |
| Date of decision: | 26-11-2019 |
| Citation: | Belgian Council for Alien Law Litigation, 26 November 2019, N° 229 288 |
Keywords:
| 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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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The fact that an asylum applicant has already been persecuted in the past or has already suffered serious harm is a serious indication of the well-founded fear of the claimant, or of the real risk of suffering serious harm, unless there is good reason to believe that this persecution or serious harm will not happen again.
When an applicant has suffered female genital mutilation in her country of origin, there is a rebuttable presumption that she will again be the victim of such persecution because of her membership in the social group of Ivorian women.
Facts:
The applicant, an Ivorian national, was subject to female genital mutilation by her family at twelve years old. At age fourteen, she was forced to marry her late husband, who had two other wives, and was slaved around the house. After the death of her husband in 2016, her family announced that she was to marry his younger brother. With the help of her uncle, she arrived in Brussels alone in January 2018 and submitted an application for international protection on 2 February 2018.
In Februrary 2019, the Commissioner-General for Refugees and Stateless Persons rejected her application noting a lack of credibility regarding her allegedly forced marriage, by reason of the incompatibilities between her allegations and the objective information obtained by the authorities. It also mentioned considered the fear that she or her daughter would endure female genital mutilation in Ivory Coast not to be very probable, because her daughter did not accompany the applicant in Belgium.
The applicant appealed against this decision before the Council.
Decision & reasoning:
The Council recalled that the Commissioner was under the obligation to enumerate the reasons which led him to believe that the applicant had not established her well-rounded fear of being persecuted or a real risk of serious harm if she was to return to the Ivory Coast. Under article 48/7 of the 15 December 1980 Belgian Law on Aliens, the fact that an asylum applicant has already been persecuted in the past or has already suffered serious harm is a serious indication of the well-founded fear of the claimant, or of the real risk of suffering serious harm, unless there is good reason to believe that this persecution or serious harm will not happen again.
In view of the very nature of the harm in this specific case, which creates a risk of repetition, and the seriousness of female genital mutilation in that it is an irreversible attack on the physical integrity of the woman, the Court found that the presumption underlying article 48/7 was not rebutted in the present case. It ruled that the mutilation undergone constituted sufficient proof of the risk that she will again be the victim of such persecution, by reason of her membership in the social group of Ivorian women. The decision of the Commissioner-General was overturned and the applicant was recognised as a refugee.
Outcome:
Appeal granted.
Observations/comments:
For a statistic analysis of FGM-based asylum claims in Europe, see (french) :
https://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=5163edf14
For a detailed account of the situation in Belgium, see :
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| le séjour |
| l’établissement et l’éloignement des étrangers) |
| 15 December 1980 Law on Aliens (Law (Loi du 15 décembre 1980 sur l’accès au territoire |
| Articles 48 to 48/7 |
Other sources:
Décision de refus du statut de réfugié et de refus de la protection subsidiaire
Désignation BAJ
Article publié sur www.http://jacquesrogershow.com
COI Focus
Article publié sur Fondation GAMS