France – Council of State, 21 April 2017, n° 399780
| Country of Decision: | France |
| Country of applicant: | Bangladesh |
| Court name: | Council of State, 2nd chamber |
| Date of decision: | 21-04-2017 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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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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:
The fact that the membership of a particular social group is not subject to specific repressive criminal provisions has no incidence on the granting of refugee status.
Facts:
The Applicant, M.B…A…, a gay man of Bangladeshi nationality, requests the Council of State to quash the decision of the National Asylum Court which denied his request to annul the decision n°13-08-0287 of 30 March 2015 which rejected his application for refugee status.
Decision & reasoning:
Article 10(1)(d) of the Qualification Directive 2004/83/EC of 29 April 2004 provides that a group shall be considered to form a particular social group 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, as mentioned in article 1 of the 1951 Refugee Convention. The assessment of the reality of the persecutions on the basis of the membership of a particular social group can be reliant on abusively applied common law provisions to that particular social group, or on the behaviour of the country of origin authorities, encouraged or favoured by these authorities or even simply tolerated by these authorities.
In its decision, the National Asylum Court had correctly noted, on the one hand, that homosexual people in Bangladesh are assimilated to a particular social group and, on the other hand, that statements of M. A established his sexual orientation. The National Asylum Court erred by denying refugee status to M. A because he belongs to a particular social group on the basis of a common characteristic of sexual orientation perceived as being different by the Bangladeshi society. The decision n°13-08-0287 of 30 March 2015 is quashed and the case is sent back to the National Asylum Court.
Outcome:
Application granted.
Subsequent proceedings:
Constant position of the Court: example: Council of State, No. 349824: “Considering, that refusing to grant refugee status to M.B… on the grounds that, on the hand, the person concerned did not establish that he had manifested his sexual orientation and, on the other hand, that homosexuality is not punishable under the Criminal Code of the Democratic Republic of Congo, the National Asylum Court has erred twice; that, consequently, and without it being necessary to examine the other grounds of the appeal, its decision must be quashed.”
Italy, 14 November 2017: case which concerned a gay man from Nigeria, whose appeal against the negative decision of the Territorial Commission on his asylum claim had been rejected by the Court of Appeal of Ancona. The Court of Cassation quashed this decision on four points. The last one was that it had not paid sufficient attention to the fact that same-sex acts are criminalised in Nigeria and, consequently, gay men are at risk and may be in need of international protection. The Court of Cassation reiterated the need for a shared burden in the case of an applicant fleeing persecution due to his sexual orientation.
Observations/comments:
This case summary was written by Clara Gautrais, LPC student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France – Law 91-647 of 10 July 1991 on Legal Aid |
| France – Code of Administrative Justice |
| France – Code of Entry and Residence of Foreigners and of the Right of Asylum |