Belgium - Council for Alien Law Litigation, June 19th 2019, X. v. Commissioner-General for Refugees and Stateless Persons, n° 222 826

Facts:

The applicant, a Guinean national born in 1994, married her then-fifty year-old husband in 2010. He died in 2015, and following his death, her late husband’s older brother offered to marry her, a practice also known as levirate, (which is common in Guinea), which she refused.

A month later she was verbally and physically attacked by her younger brother-in-law, who accused her of squandering his late brother’s inheritance. She pretended to accept the levirate, provided that her late husband’s family gave her a break.

Later, her sister-in-law informed her that she wished to subject her daughter to genital mutilation. She pretended to agreeto avoid her sister-in-law from taking her daughter away on the spot. In September 2015, she decided to leave her hometown of Labé for Demoudoula, where she and her children where sheltered by a close friend. Her children remain in Demoudoula to this day. There, she entered in contact with a smuggler who organised her departure from Guinea. She left Guinea alone on September 26th 2016, equipped with her passport and a visa. She arrived in Belgium that same day and applied for asylum on October 12th 2016.

On September 26th 2017, the Assistant Commissioner for Refugees and Stateless (ACRSP) Persons rejected her application for asylum and refused to grant her refugee status. The ACRSP considered that, because the applicant had provided inconsistent and contradictory information to the authorities about her visas and personal identification documents, the authority could not adequately pronounce itself on the substantial elements put forward by the applicant to support her application. According to the ACRSP, she therefore did not sufficiently show a well-rounded fear to be persecuted if she returned to Guinea.

On October 31st 2017, the applicant appealed against that decision before the Federal Administrative Court.

Decision & reasoning:

The Federal Administrative Court had to examine whether the applicant could be considered a refugee under article 1 A (2) of the Geneva Convention 1951.

The asylum applicant referred to the fear of being obliged to marry her brother-in-law in accordance with the practice of levirate, a common family tradition in Guinea. She also evoked the fear of her daughter being subject to female genital mutilation.

The FAC noted that the applicant had attempted to deceive the Belgian authorities (by providing conflicting elements of information) because she had been pressured to do so following threats by the smugglers who had organised her travels. They observed that the applicant sincerely regretted her actions. The Court then noted that the explanation given by the applicant regarding her travels and the identification documents was sufficiently coherent and plausible.

Concerning the applicant’s fear of being forced into the levirate practice by her late husband’s family, the Federal Administrative Court examined the accuracy of this risk in light of the substantial elements and declarations included in the file. The Court noted that the age difference between the applicant and her husband, who she had married at sixteen, was more than forty years. They concluded that the marriage had been forced.

Moreover, while the ACRSP had concluded that the levirate had not been forced upon the applicant because she had verbally accepted it, the Court noted that she had merely pretended to accept the offer in order to be left in peace by her late husband’s family. The applicant, in case of her return to Guinea, could therefore risk being persecuted by non-state actors.

Finally, the FAC had to determine whether the Guinean State could provide protection to the applicant against these persecutions in accordance with article 48/5 § 2 of the Belgian December 15th 1980.  In that regard, the documents provided by the appellant testify to the regular violation of women’s rights and lack of protection for women in the inegalitarian Guinean society, where women are commonly married by force and obliged to follow traditional and conservative customs.

The Court therefore considered that the applicant qualified as a refugee under article 1 A (2) of the Geneva Convention 1951. This is because she risked being persecuted by non-state agents and state agents by reason of her membership to the social group of women.

The ACRSP’s decision was annulled.

Outcome:

Appeal granted.

Observations/comments:

For a detailed report on the practice of levirate in Guinea, the assistance available and state protection, see : https://www.refworld.org/docid/543b920b4.html

This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.

Other sources:

UNHCR Refworld : Guinée : information sur la fréquence des lévirats, particulièrement dans le groupe ethnique peul, conséquences d’un refus, aide disponible et protection offerte par l’État (2012- juin 2013), https://www.refworld.org/docid/543b920b4.html

UNICEF : Analyse de situation des Enfants en Guinée, 2015

UNHCR Refworld : Guinée : Information sur les mariages forcés, y compris sur leur fréquence, les lois touchant les mariages forcés, la protection offerte par l’État et la possibilité pour les femmes de refuser un mariage forcé (2012-2015)

Comité CEDEF : Rapport alternatif conjoint FIDH-OGDH-MDT-AVIPA-CODDH

Child Rights Information Network : Guinea : Child Rights References in the Universal Periodic Review

Landinfo Norvège : Guinée : le mariage Forcé

UNHCR Refworld : Guinée- information sur la violence conjugale, y compris sur les lois, la protection offerte aux victimes et les services de soutien (2012-septembre 2015)

UNHCR Refworld : Guinée : information sur les passeports et les cartes d’identité, y compris leur aspect ; les exigences et la marche à suivre pour obtenir le passeport et la carte d’identité, tant au pays que l’étranger : information sur la pénurie de passeports et de cartes d’identité (2014-Septembre 2017)