Belgium – X. v. Commissioner General for Refugees and Stateless Persons, No. 220.190, 24th April 2019
Keywords:
| Keywords |
|
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. |
|
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. |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
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. |
|
Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
LGBT individuals who have left Morocco can be granted refugee status as the socially and legally hostile environment towards LGBT individuals in this country can justify fear of persecution based on their membership to a particular group. A cautious assessment of the consequences of a return to the country of origin and an extensive benefit of the doubt are advised in the review of asylum applications of Moroccan nationals identifying as LGBT.
Facts:
The applicant, a Moroccan national, arrived in Belgium on October 26th 2015. On May 18th 2016, he submitted an asylum application before the Aliens Office (AO) on the basis of his sexual orientation and the fear of persecution it led to, given the hostile attitude towards LGBT individuals in Morocco. The AO rejected the applicant’s claim to asylum, on the basis that he had insufficiently supported his sexual orientation claim, as he had merely provided vague, impersonal and stereotypical elements. Because sexual orientation would be the sole reason for granting him refugee status under the Geneva Convention, the OA rejected the application and did not consider the possibility of subsidiary protection within the meaning of Article 48/4 of the 15 December 1980 Belgian law on Aliens. The applicant appealed against that decision.
Decision & reasoning:
The Council first started by examining the credibility of the applicant's claims regarding his sexual orietnation. It noted that the discovery of one’s sexuality is a complex process and is difficult to explain. The claimant had been consistent in the account of his developing awareness and the realisation of the difference in attitudes compared to other boys of his age. In view of the applicant’s declarations, and in light of the diverse elements put forward by him as part of the asylum application, the Council stated that the claimant – who, the Council noted, was ‘still young’ and whose sexual identity was ‘still under construction’ – had provided sufficient proof of his sexual orientation.
Looking into whether the applicant's fear was well-founded, the Council called for caution in reviewing applications for international protection of LGBT applicants from Morocco, advising bodies to give the benefit of the doubt extensively in such cases and to conside rpotential consequences of a return. The Council aligned itself with the claimant’s observation that LGBT identities were not accepted in Morocco, and was seen as intolerable both within the society and the family. In this line, it further recalled that the claimant had been disinherited, was physically assaulted by his father and uncle, and had received death threats from the latter while in Morocco.
The Council concluded that the ill-treatment to which the applicant had been subjected in Morocco constituted acts of mental or physical violence within the meaning of article 48/3 §2 of the December 15th 1980 Law, as a result of the individual’s belonging to a social group as intented in Article 1, Section A §2 of the 1951 Geneva Convention. Consequently, the applicant could rightfully be recognised as a refugee.
Outcome:
Appeal granted.
Observations/comments:
The Council’s decision raises awareness about a delicate, yet fundamental aspect of asylum claims : sexual orientation. In having to establish his homosexuality, the claimant finds himself under the responsibility to ‘do what scientists have never been able to do’, as Gartner notes in «(In)credibly Queer : Sexuality-based Asylum in the European Union» (Humanity in Action Press, 2015). In such a context, many have called for greater attention paid towards the facts underlying the exiel as well as the potential ill-treatment suffered by the claimant in his country of origin.
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
« Etre homosexuel au Maroc », www.ossin.org
« Homosexualité au Maroc : on me disait que j’avais une maladie contagieuse », Le Monde 12 avril 2016
« Fés : Un homme présenté par Goud.ma comme homosexuel, lynché par la foule », Al Huffington Post, 30 Juin 2015
« Maroc : Deux homosexuels violemment agressés puis emprisonnés », Le NouvelObs
« Maroc : homosexuels, des victimes jugées coupables », http://information.tv5monde.com
« Agression sauvage d’un travesti à Meknès (video), www.bladi.net
« ‘Faut-il brûler les homos’, demande un habdo marocain », www.7sur7.be
« Maroc : le droit à la vie privée ne s’applique pas aux homosexuels », http://fr.blastingnews.com
« Benkirane sur l’homosexualité : ‘Les gens qui souffrent de cette tare devrait se cacher’ », www.huffpostmaghreb.com