Belgium - Council for Alien Law Litigation, 17 August 2017, n°190 672
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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." |
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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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Duty of applicant
Description
The duty imposed on an applicant for international protection by Article. 4(1) of the Qualification Directive to submit as soon as possible all elements needed to substantiate the application for international protection. |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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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." |
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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:
An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable.
Facts:
The applicant is an Albanian national who was abducted by an armed man in 1997 who, after she had refused to follow him to Greece, burned her right arm which consequently had to be removed. The man also forced the applicant to live in his cousin’s abandoned house, where he regularly raped her. After the birth of their first child in 1998, the applicant was rejected and despised by her abuser’s family and her own father, who thought that she had voluntarily followed her rapist and had consequently shamed the family. The applicant gave birth to three other children in 2002, 2005 and 2007.
In August 2014, following the death of her abuser, the latter’s family expelled her from the village. The applicant’s sister then invited her and her children to live with her in another Albanian county. Due to ongoing instances of threats towards one of her sons, the applicant arrived in Belgium, where another sister of hers was residing, and applied for asylum there.The applicant claimed that her personal circumstances demonstrate her well-founded fear of persecution in Albania. She referred to the hostile relationships with her late companion’s family and the death threats received by her son in 2015.
The Commissioner-General for Refugees and Stateless Persons (CGRSP) rejected the applicant’s claim for refugee protection finding that the applicant had not sufficiently established a well-founded fear of persecution in case of her return to Albania. The fact that the applicant had remained in that abusive relationship for seventeen years and did not leave the country immediately after the threats towards her son affected her credibility. She also never attempted to contact the Albanian authorities. Finally, the CGRSP found that recent regulations on police forces, including domestic violence training, as well as the possibility to get help from the authorities, pointed to a lack of risk upon return.
Decision & reasoning:
The Council started by examining whether the treatment suffered by the applicant constituted persecution under the 1951 Convention on Refugees. Recalling the applicant’s personal circumstances and her psychological record added to the file, the Council concluded that she had sufficiently established the material truth of her persecution as well as the gravity of the psychological suffering these persecutions had caused her.
The Council then examined whether the applicant had provided sufficient proof of her well-rounded fear by reason of the circumstances invoked between 1997 and 2014 – and despite the death of the principal actor of persecution in 2014. The Council considered that the persecution suffered by the applicant was of such gravity that its consequences were likely to last for the rest of her life. It also noted that the aim of the international protection guaranteed under the Geneva Convention was to provide applicants with adequate protection against possible persecutions, and not to compensate for the harm suffered as a consequence of previous persecution.
However, the Council recalled that, where the previous persecution was of such gravity that the applicant’s fear was exacerbated to the point where a return to their country of origin would prove unfeasible, then the applicant may be granted refugee status under article 1. C. 5) of the Geneva Convention 1951. This exacerbated fear should be assessed in light of the applicant’s personal experience, their psychological structure, and the extent of the physical and psychological consequences relevant in the case at hand.
In this case, the Coucil estimated that the applicant had sufficiently proved that her personal circumstances induced in her an exacerbated fear which justified the impossibility of her return to Albania. Consequently, the Council granted refugee status to the applicant, annulling the CGRSP’s decision.
Outcome:
Appeal granted.
Subsequent proceedings:
The case has not been appealed before the High Court and the judgment is now final.
Observations/comments:
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
For a more recent presentation of the protection provided by Albanian authorities to victims of domestic violence, see (in french) :
- https://ofpra.gouv.fr/sites/default/files/atoms/files/1712_alb_violences_domestiques.pdf
- https://www.eurasia.undp.org/content/rbec/en/home/ourwork/democratic-governance-and-peacebuilding/successstories/albania--zero-tolerance-for-domestic-violence.html
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 62 |
| le séjour |
| 15 December 1980 Law (Loi du 15 décembre 1980 sur l’accès au territoire |
| l’établissement et l’éloignement des étrangers) |
| Articles 51/4 |
| 48/3 |
| 48/4 |
| 48/7 |
| 39/2 §1 |
Other sources:
Case Law Cited :
Belgium :
CPRR 91-490/F161, 7 January 1993
CPRR 96-1850/F517, 8 September 1997
CPRR 05-06161/F2563 14 February 2007
CCE 29.223 29 June 2009
CCE 55.770 9 February 2011
Other Sources Cited :
Amnesty International, Albanie 2015/2016
Refworld, « Albanie : information sur la violence familiale, y compris les lois, la protection offerte par l’Etat et les services de soutien (2011-avril 2014) », 30 avril 2014
HCR, Guide des procédures et critères pour déterminer le statut de réfugié, Genève, 1979, p.51, §196