France - Council of State, 27 July 2012, n° 349824, M.B.
| Country of Decision: | France |
| Country of applicant: | Congo (DRC) |
| Court name: | Council of State (CE) |
| Date of decision: | 27-07-2012 |
| Citation: | CE, 27 juillet 2012, n° 349824, M.B. |
Keywords:
| Keywords |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
A social group is not formed by those of whom it consists, or even by the objective existence of characteristics ascribed to them, but by the way in which surrounding society or institutions regard them.
Facts:
The Applicant, a homosexual man from the DRC, was granted subsidiary protection but refused refugee status by the CNDA (National Asylum Court). The CNDA found, on the one hand, that he had failed to establish that his sexual orientation had been openly expressed and, on the other, that homosexuality is not a criminal offence in the DRC.
The Applicant applied to the Council of State to quash the CNDA’s decision and to recognise his refugee status.
Decision & reasoning:
The Council of State first reiterated the provisions of Article 10, section 1 d) of the Qualification Directive and held that a social group “consists of persons who share an innate charactistic, a common background or a characteristic so that is so fundamental to identity and conscience that they cannot be asked to renounce it, and a distinct identity perceived as being different by surrounding society or institutions” and that “according to the prevailing circumstances in a country, persons may, due to their sexual orientation, constitute a social group”.
The Council of State found that a social group is not formed by those of whom it consists, or even by the objective existence of characteristics ascribed to them, but by the way in which surrounding society or institutions regard them; it held that the grant of refugee status because of persecution arising from membership of a social group based on shared sexual orientation should not be dependent on a public expression of that sexual orientation by the person seeking the refugee status.
The Council of State added that the fact that membership of the social group was not specifically a criminal offence did not have any bearing on assessing the actual existence of the persecution due to that membership. Persecution may stem from ordinary legal provisions being unreasonably applied to that social group, or from behaviour emanating from the authorities, being encouraged by those authorities or even simply being tolerated by them.
The Council of State concluded that theCNDA had made a twofold mistake of law.
Outcome:
The decision of the CNDA was quashed. The case was referred back to the CNDA.
Observations/comments:
In a decision of the same date (CE, 27 July 2012, n°342552) concerning a female Mongolian homosexual Applicant, the Council of State adopted the same definition of a social group (see summary above), adding that assessment of the conditions in the country of origin “must, furthermore, be sufficiently precise and be able to take account, where appropriate, of any specificities in the way various elements of that group are regarded”.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |