Belgium – Council for Alien Law litigation, 20 October 2010, Nr. 49.821
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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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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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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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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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:
This case concerned the concept of “particular social group." The CALL held that persons of the same sex can, in certain societies, be considered as a “particular social group.” The applicant, a victim of forced prostitution, was granted international protection on the basis of her belonging to the social group of women.
Facts:
The applicant was a victim of forced prostitution in Macedonia and suffered serious abuse at the hands of the perpetrators. She managed to escape to Belgium and applied for asylum. Her application was refused on the basis of a number of improbabilities in her account; further it was not established that the applicant could not obtain a reasonable degree of protection from the Macedonian authorities against acts committed by perpetrators within the prostitution network. The applicant filed an appeal against this decision.
Decision & reasoning:
The CALL then went on to consider risk in light of the applicant’s account and held that the facts were sufficiently serious by their nature and by their repetitive character to constitute persecution. In its reasoning the CALL referred to Art. 57/7bis of the Alien Act, which is a transposition of Art 4.4 of the Qualification Directive (past persecution or serious harm). The CALL concluded that the abuse which the applicant was subjected to should be considered as a serious indication of the applicant’s well-founded fear.
The CALL subsequently considered the grounds for persecution and commenced by reminding the court that the concept of “particular social group” has evolved enormously through case law in recent years. Referring to cases of the Canadian Federal Court and the UK House of Lords, the CALL indicated that a “particular social group” can now also be defined on the basis of the existence of an innate or unchangeable characteristic, such as gender. The CALL then considered that this concept of “particular social group” is “to a certain extent” reflected in Art 10(d) of the Qualification Directive.
The CALL noted that Belgian law did not entirely transpose this article of the Directive (see art. 48/3, §4 Alien Law). However, the CALL considered that the definition of “particular social group” under Belgian law was non-exhaustive and that national law should not be interpreted as restricting the Directive. On this basis the CALL decided that “in certain societies, persons of the same sex, or certain categories of persons of the same sex, can be considered as forming a particular social group”. In the present case the CALL found that the applicant had a fear of being persecuted on the basis of her membership of the social group of women.
The CALL subsequently examined whether the applicant could reasonably be expected to obtain effective protection from the Macedonian authorities, the actors of persecution in this case being private. Having considered the factual evidence (e.g. links between the prostitution network and the authorities), the CALL decided that this was not the case. It is interesting to note, however, that in its reasoning the CALL reiterated that NGOs cannot be considered as actors of protection (to the extent that they do not control the state or an important part thereof).
Outcome:
The decision of the CGRS was overturned and the applicant was granted refugee status.