France - Council of State, 25 July 2013, n° 350661
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
|
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. |
|
Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
The Council of State ruled that non-governmental organisations who, by way of their statutory objects and their actions, can prove a sufficient interest in relation to the subject-matter of the proceedings, can make an application before the CNDA on the terms set out by the Council of State.
In this case, the Council of State held that the CNDA had made an error of law in ruling that Nigerian women who were victims of human trafficking networks and who had actively sought to escape the network constituted a social group within the meaning of the 1951 Refugee Convention.
Facts:
By a decision dated 29 April 2011, the CNDA quashed a decision made by the Ofpra and recognised the refugee status of a Nigerian woman, holding that she belonged to a social group of Nigerian women who were victims of human trafficking networks and who had actively sought to escape their grip.
The Ofpra lodged an appeal against this decision before the Council of State.
The Cimade and another organisation, “Les amis du bus des femmes” [“Friends of the Women’s Bus”], lodged an application before the Council of State to defend the CNDA’s interpretation in favour of the Applicant.
Decision & reasoning:
In relation to the admissibility of the organisations’ applications:
The Council of State found the application made by the aforementioned organisations to be admissible, since, through their statutory objects and their actions, they had proven a sufficient interest in relation to the subject-matter of the proceedings. Their applications could, as a result, be admitted.
However, the Council of State underlined that this application would still remain ancillary in nature and would not have the effect of conferring the status of party to the proceedings onto its maker, who would not have access to the case file, and under general procedural rules, judgment in the main case would not be delayed by an application.
In relation to the interpretation of the 1951 Refugee Convention:
After reiterating the definition of a refugee as set out in Article 1A(2) of the 1951 Refugee Convention, and the definition of a social group as set out in Article 10 of the Qualification Directive (2004/83/EC), the Council of State held that an error of law had been made by the CNDA in holding that Nigerian women who were victims of human trafficking networks and who had actively sought to escape their grip constituted a social group within the meaning of the 1951 Refugee Convention. The Council of State said that the CNDA should have investigated whether, beyond the procuring networks from which they were at risk, surrounding society or institutions perceived them as having a particular identity that would constitute a social group within the meaning of the said Convention.
Outcome:
The applications by the Cimade and the organisation “Les amis du bus des femmes” were admitted.
The CNDA’s decision dated 29 April 2011 was quashed.
The case was referred back to the CNDA.
Subsequent proceedings:
The Council of State's decision was sent back to the CNDA who found that victims of trafficking from the Edo State do, indeed, share a common background and distinct identity which falls within the definition of a particular social group. The applicant was given refugee status - click here for summary and judgment.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| France - National Asylum Court, 24 March 2015, Decision No. 10012810 |