Belgium – Council for Alien Law Litigation, 24 June 2010, Nr. 45.395
Keywords:
| Keywords |
|
Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
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. |
|
Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
|
Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
|
Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
|
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." |
|
Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
Facts:
Decision & reasoning:
The case then turned to the question of whether the applicant was credible about her Somali nationality.
The applicant alleged that her nationality was in fact not important, as FGM is an ethnic and cultural phenomenon. If it could be established that the applicant belonged to a certain ethnic or cultural group that carries out FGM, this should suffice. The CALL, however, did not agree with this argument as the applicant could rely on the protection of his/her country of nationality.
The CALL gave extensive consideration to difficulties, both factual and legal, that could arise during an investigation of nationality. The CALL stated that parties have a shared burden of proof.
Applicants may be unable or unwilling to seek the protection of the country of nationality and / or could be in a situation in which it is difficult to provide conclusive evidence of their nationality (e.g. passport). In such cases, other means of evidence (e.g. documents, declarations) could be accepted. It is then up to the CGRS to assess this evidence. The CALL highlighted that in doing this, and in particular during the assessment of the factual account regarding the applicant’s country or origin, the profile of the applicant should be taken into account. In the case at hand, the applicant had the profile of an illiterate woman. The CALL held that it could not, on the basis of the file, determine whether or not the CGRS had correctly assessed the factual knowledge of the applicant, taking into consideration her profile, and consequently, it could not determine whether the applicant was credible about her Somali nationality. It was decided that more investigation was needed by the CGRS.