Sweden - Migration Court of Appeal, 22 December 2009, UM 1664-09
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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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. |
Headnote:
Academics are not a particular social group in the context of the refugee definition.
Facts:
The applicant (female) applied for asylum in October 2007. She claimed that she had been subject to threats because of her position as a well-known academic and intellectual. The woman and her husband taught at Bagdad University.
The Migration Board denied the application on 25 September 2008 as the applicant was not found to have shown that she would face persecution or similar threats on return to Iraq. The threats against her had stopped when she left her university position and had not started again.
The Stockholm Migration Court, however, granted her appeal (12 February 2009) and considered the woman eligible for refugee status as her claims for protection were connected to her education. The Court concluded that academics could be seen as a particular social group as referred to in the refugee definition. The Court’s decision was not unanimous on this point. The decision was appealed by the Migration Court.
Decision & reasoning:
When determining the applicant’s need for protection the Migration Court of Appeal stated that ”academics” do not constitute a homogenous group in terms of having common, unchangeable backgrounds or characteristics. Neither can academics be seen as having common convictions or qualities so fundamental for their identity or conscience that they cannot be forced to give them up. This group of professionals thus does not fall within the scope of the refugee definition. In its discussion, the Court relied on UNHCR Guidelines as well as Article 10.1 (d) of the Qualification Directive.
As concerns subsidiary protection, the Migration Court of Appeal stated that certain groups of professionals in Iraq were indeed at risk of persecution to a higher extent than other groups in society. One such group, the Court said, are academics. This means that if individual grounds for protection can be shown, a person can be seen as eligible for alternative protection according to Chapter 4 Section 2 of the Aliens Act (wording before 2010). In this particular case however, the Court did not find that the COI supported that academics in Iraq where considered a particular social group by others in society. Therefore, being an academic did not mean that a person was automatically at risk of being persecuted.
Outcome:
The appeal was granted and the judgment of the Migration Court revoked – asylum was not granted.
Observations/comments:
On the same day, the Migration Court of Appeal delivered judgments in a case concerning an Iraqi doctor (UM 240-09) and an artist/musician (UM 7669-09). The same conclusion was reached in all three cases.
Relevant International and European Legislation:
Other sources:
UNHCR Guidelines "Membership of a particular social group" within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.