Belgium - Council for Alien Law Litigation, 6 November 2008, Nr. 18.419
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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. |
Headnote:
This case considered whether or not a “family” could constitute a particular social group under the Refugee Convention. The applicant, whose family was implicated in a vendetta, had a well-founded fear of persecution on the basis of her membership of the social group that is her family. It was held by the CALL that a family could constitute a particular social group.
Facts:
Her asylum application was rejected by the Office of the Commissioner General for Refugees and Stateless Persons (CGRS), who considered that her statements were too vague and imprecise, and based on presumptions.
Decision & reasoning:
The CALL then considered the applicant’s case in light of the definition of a “particular social group” in Belgian law (Art 48/3, §4, (d) of the Alien Act), the CALL held that a family can fall within that definition and be considered as a “particular social group.” The CALL also made a reference to an (unspecified) UNHCR document in which it is stated that a family could be considered as a “particular social group.” Further that an asylum request based on the fear of persecution because of the applicant’s membership of a family or clan that is implicated in a vendetta can, under certain circumstances, lead to the recognition of refugee status.
In the case at hand, the CALL concluded that it was established that the applicant was under threat in a targeted manner, due to her membership of a particular family and because of the practice of vendetta. . Her fear of persecution therefore existed because of her membership of the particular social group that is her family.
Outcome:
The decision of the CGRS was overruled and the applicant received refugee status.