France - Council of State, 14 June 2010, OFPRA c/ M. A., n°323669
| Country of Decision: | France |
| Country of applicant: | Afghanistan |
| Court name: | Council of State / Conseil d'État |
| Date of decision: | 14-06-2010 |
| Citation: | CE, 14 juin 2010, n°323669, OFPRA c/ M. A. |
Keywords:
| Keywords |
|
Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
|
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. |
|
Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The involvement in a State regular police force does not constitute, in itself, the expression of political opinions or the membership of a particular social group.
Facts:
The applicant, from Afghanistan, claimed that he feared persecution from the Taliban in his region of origin because of his involvement in the Afghan police.
The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. The Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA) quashed the Ofpra decision and granted him refugee status. The Ofpra challenged the CNDA decision before the Council of State.
Decision & reasoning:
Referring to the provisions of Article 10.1(d) of the Qualification Directive, the Council of State considered firstly that membership of an institution such as the army, the police, the secret service or the judiciary, which are created by the State, cannot, in itself, qualify as membership of a particular social group within the meaning of the 1951 Refugee Convention.
Referring to the same provisions, the Council of State considered secondly that applicants could be entitled to protection on the basis of their political opinions when the State institution they are involved in subjects access to employment within it to the adherence to such opinions, or acts on these grounds only, or fights exclusively all the persons who oppose these opinions.
The Council of State recalled that the CNDA granted refugee status to the applicant on the ground that he was convinced that religious obscurantism should be fought against and that he received death threats as a public order officer.
The Council of State concluded that the CNDA made a legal error by founding its decision on these grounds without inquiring if these persecutions were likely to be linked to one of persecution grounds of the 1951 Refugee Convention, and the involvement in a State regular police force does not constitute, in itself, except in the above-mentioned cases, the expression of political opinions or the membership of a particular social group.
Subsequent proceedings:
The CNDA decision was quashed.
The Council of the State will give a ruling on this application following a future hearing.
Observations/comments:
Council of State fresh decision pending as of 07/12/2011.