Poland - Supreme Administrative Court of Poland, 8 May 2008, OSK 237/07

Facts:

In 2005, the Russian applicant applied for refugee status in Poland. She stated in her application that she was the victim of domestic violence. She was abused and beaten by her husband, and her freedom of movement was restricted. She was the victim of violence on the part of her husband's colleagues. She did not seek protection from state authorities but fled to Poland with her child.

The  first instance authority - at the time the Head of the Office for Foreigners - refused to recognise refugee status or grant her right to remain. On appeal, the Polish Council for Refugees upheld the decision to refuse to recognise refugee status but overturned the remainder of the judgment, granting her right to remain due to the general situation where she lived.

The alien appealed against the decision. The Regional Administrative Court in Warsaw dismissed the appeal as the authorities in question had rightly found that domestic violence does not make a person eligible for refugee status. The applicant had not sought help from the authorities of her country of origin, and violence and intimidation are criminal acts and do not bear the hallmarks of persecution by state authorities. This was further appealed to the Supreme Administrative Court.

Decision & reasoning:

Despite the fact that, during the proceedings, the Qualification Directive was not transposed into domestic law, and the deadline for its implementation was not reached, Member States must interpret domestic law in the spirit of the Directive.

Violence, beating, and bullying constitute persecution within the meaning of the Convention relating to the Status of Refugees (the Refugee Convention) and the Qualification Directive.

The fears of the applicantfall within the scope of Article 1A(2) of the Refugee Convention. The practice of other countries based on this rule indicates that gender can also be a feature that defines a social group, and that women can therefore be a social group.

Social groups are defined by two criteria. The first concerns features subject to protection, and an analysis needs to be performed of whether the group is characterised by a feature that is permanent or of such fundamental significance for human dignity that no one should be forced to renounce it. A permanent feature may be acquired by birth (gender or ethnicity) or may be immutable for other reasons (e.g. historical links, i.e. links with the past, a profession, or status). However, when features that are fundamental for human dignity are being determined, human rights standards are helpful. Courts and administrative authorities in some countries have therefore accepted the criterion that women, gays and lesbians, and families (and even an individual family) can be classified as 'particular social groups'.

The second criterion concerns the common feature of the group in question, which makes it different from the rest of society.  This approach is termed the 'social perception' approach. In this case, women, families, and gays and lesbians have been recognised as social groups, depending on the conditions prevailing in the country in which they live.

In this regard, it must therefore be determined whether the applicant was living in a society in which it is acceptable to treat women worse than men, and whether the treatment is by public authorities, members of the public, or family members. Even if the person committing the acts of persecution does so for personal reasons, the criteria may be met for the acts to be deemed acts of persecution if the perpetrator knows that his act will go unpunished.

The applicant was not obliged to exhaust all available means of protection provided by the state. It should be determined whether, in the given circumstances, she would have obtained help from the state had she requested it. A first important factor is whether the legal system in the country in question envisages the provision of such protection (i.e. whether suitable procedures are in place), but a second important factor is whether the applicant has access to such protection (i.e. whether there is a genuine opportunity to seek it).

There are situations in which approaching the state or state authorities for protection is not just ineffective but also causes the woman in question to run additional risks.

Outcome:

The judgment by the Regional Administrative Court in Warsaw and the judgment by the Polish Council for Refugees were overturned.

Subsequent proceedings:

Decision to recognise the applicant's refugee status, by the Head of the Office for Foreigners (DP-II-420-811/SU/20005)

Observations/comments:

This judgment is important in the interpretation of domestic law in the spirit of EU law before the deadline passes for the transposition of the Directive in question. It discusses comprehensively the concept of belonging to a particular social group and the question of seeking help from state authorities before applying for refugee status.

Other sources:

Aguirre Cervantes v INS, 21 March 2001.

Report by Amnesty International on violence against women in the Russian Federation