France - National Asylum Court, 24 March 2015, Decision No. 10012810
Keywords:
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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. |
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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." |
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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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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." |
Headnote:
The case is a referral back to the CNDA from the Council of State in no. 350661 where the Council had found the CNDA to have erred in law in a previous appeal (no. 10012810) by finding 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. The CNDA 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.
Facts:
The case concerns a Nigerian national from the Edo State who was forced into prostitution after being trafficked into France. She later reported to the police the names of those involved in the prostitution network and applied for asylum. Fearing that if returned she would be suspected of prostitution, illegal in Nigeria, the applicant further claimed that she would be ostracised by her social and familial network, that she had breached the social contract given that she had not repaid the debt for her journey to Europe and that she would be viewed as being cursed by the community in light of a ritual ceremony in Nigeria which marked her allegiance to the trafficking network.
Stating that whilst the victims of trafficking would be viewed upon disapprovingly by Nigerian society, given that the majority of female victims were later prostitutes in Europe, the French Office for the Protection of Refugees and Stateless People (OFPRA) found that this was not enough to constitute a particular social ground in accordance with the 1951 Geneva Convention and the Qualification Directive. Moreover, the Office considered that no information had been furnished to suggest that the victims of trafficking were submitted to persecutory acts if returned to Nigeria and, thus, refused the applicant’s asylum application.
This argumentation was later rejected by the CNDA in an appeal dated the 29 April 2011, which was subsequently brought forward in a subsequent appeal to the Council of State by the French Office for the Protection of Refugees and Stateless People (OFPRA). Quashing CNDA’s decision the Council of State found that the former 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.
The case was then sent back to the CNDA for its reconsideration.
Decision & reasoning:
Turning first to the question of particular social group, the French National Court of Asylum examines Article 10 ofDirective 2011/95/EU and notes that a social group is comprised of persons who share an innate characteristic which cannot be modified. As a result society perceives the group as being different. The CNDA goes on to note that females from Nigeria undergo a “juju” ritual which scars the body and marks their entry into the trafficking network. Moreover, the years of exploitation in Europe that they are submitted to along with the ensuing threats if they try to leave the network leads the CNDA to find that such women have a common background that cannot be changed.
Secondly, the Court notes that credible international reports document that where a young female Nigerians return home from Europe without any money, they are immediately suspected of prostitution, which is perceived extremely badly by local communities. This perception leads to social alienation. The Court goes on to conclude that female victims of human trafficking from the State of Edo share a distinct identity, which they are unable to rid themselves of and thus such females should be considered as a particular social group in accordance with international and European law.
Lastly, the Court turns to the debt owed by the applicant to a highly respected cult in the community, who had threatened the applicant’s physical integrity, as well as the discrimination faced if returned, and the severe risks of reprisals presented to the applicant for denouncing the prostitution ring. Highlighting that such actors are very powerful and enforce a customary justice in the region, the Court further considers the lack of effective administrative and judicial protection as placing the breaks on any real investigation into criminal activities, such as trafficking.
Outcome:
On account of the applicant’s membership in a particular social group and her actions against the network, the Court set aside OFPRA’s decision and granted the status of refugee to the applicant.
Observations/comments:
Following on from the Council of State’s earlier decision, the CNDA focuses primarily on the community’s perception of trafficked victims in its assessment of whether they constitute a particular social group. Reference in this regard is made to international case law emanating from Australia, Canada, New Zealand and the UK which considers that victims of trafficking do constitute a particular social group.
Moreover, several country of information reports are cited by the CNDA which highlight the lack of effective laws against trafficking, slavery and the corrupt judicial system in Nigeria as well as the customary enforcement of “traditional justice” in the State of Edo.
For more information on human trafficking and protection in asylum law please see UNHCR, Trafficking for sexual exploitation: victim protection in international and domestic asylum law. For a broader analysis of the recast Qualification Directive please see ECRE, Information Note on the Qualification Directive (recast).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| France - Council of State, 25 July 2013, n° 350661 |
Other sources:
UNHCR, Guidance Note on Refugee Claims Relating To Sexual Orientation and Gender Identity, 2008
Article 3 of Additional Protocol to the United Nations Convention against Transnational Organised Crime
Intervention by l'association Les amis du bus des femmes
Intervention by CIMADE
Intervention by l'Association Information, Prévention, Proximité, Orientation
United Nations Office on Drugs and Crime, report on human trafficking in Nigeria, 2014
US department of State, Trafficking in Persons Report, 2014
Bénédicte Lavaud-Legendre, Les femmes soumises à la traite des êtres humains adhèrent-elles à l'exploitation ? Une mauvaise formulation pour un vrai problème. Étude réalisée auprès de Nigérianes sexuellement exploitées en France, Archives de politique criminelle, 2012/1 n° 34.
Bénédicte Lavaud-Legendre, Prostitution nigériane, entre rêve de migration et réalité de la traite.
Vanessa Simoni, I swear an oath.