France - A.B. v Council of State, 8 February 2017, No. 396695
| Country of Decision: | France |
| Country of applicant: | Ivory Coast |
| Court name: | Council of State |
| Date of decision: | 08-02-2017 |
Keywords:
| Keywords |
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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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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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. |
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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." |
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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:
Granting someone a refugee status for fear of persecution based on belonging to a social group due to his sexual orientation, cannot be linked to the fact that his sexual orientation has, or not, been made public. Indeed, a social group is instituted by how society perceive those in the group.
An individual applying for asylum does not have, in order to avoid persecutions in his country, to hide his sexual orientation.
In order to prove the risk of persecution, there is no requirement that belonging to a social group based on sexual orientation must be prohibited by any criminal law in the country of origin of the applicant. In fact, this risk can be based on abusive common law provisions, or behaviours, whether they are supported, facilitated or merely tolerated by the country’s authorities.
Facts:
The applicant filed an appeal asking the Council of State to annul decision N°15009118 issued by the National Court of Asylum (‘CNDA’). This decision rejected the applicant’s appeal against the dismissal of his asylum claim by the French Office for the Protection of Refugees and Stateless Persons on 28 January 2015.
Moreover, he asks the Council of State to decide his case and to grant him refugee status. He also demands the State to be fined 2000€ under article L.761-1 of the Administrative Justice Code.
Decision & reasoning:
First, the Council of State looks at article 1, paragraph A, 2° of the Geneva Convention of 28 July 1951 and the New York protocol of 31 January 1967, to show that an individual can be considered as a refugee, if, because he belongs to a certain social group, he fears persecution.
It then defines the notion of social group as people sharing their own identity and which are perceived as different by society or by established institutions. Thus, it derives from conditions specific to a country, that individuals constitute a social group because of their sexual orientation. It must be assessed on a case-by-case basis, depending on each country, based on how the individuals of the alleged social group are seen by society or institutions.
The Council of State then adds that granting someone a refugee status for fear of persecution based on belonging to a social group due to his sexual orientation, cannot be linked to the fact that his sexual orientation has, or not, been made public. Indeed, a social group is instituted by how society perceive those in the group. Moreover, the Council of State considers that an individual applying for asylum does not have, in order to avoid persecutions in his country, to hide his sexual orientation. The Council of State then adds that, in order to prove the risk of persecution, there is no requirement that belonging to a social group based on sexual orientation must be prohibited by any criminal law in the country of origin of the applicant. In fact, this risk can be based on abusive common law provisions, or behaviours, whether they are supported, facilitated or merely tolerated by the country’s authorities.
According to the State Council, the CNDA has the responsibility to assess those elements in light of the parties’ arguments and the applicant’s narrative. The Court cannot ask for the applicant to provide evidence of his sexual orientation, but it can reject an appeal if it considers that the applicant’s plea is not substantiated enough.
Finally, the Council of State found that the CNDA had erred in law. After determining that the applicant’s sexual orientation was established, the Court nevertheless rejected the appeal. It considered that nothing in the file or in the applicant’s declaration was evidencing the alleged facts or fears.
Nonetheless, according to the Council, the CNDA did not assess if the persecution the applicant would be exposed to, was real, nor did it enquire as to whether being homosexual in the Ivory Coast amounted to belonging to a social group.
Outcome:
Application granted because the applicant is entitled to require the annulment of the 31 August 2015 decision.
The case is sent back to the CNDA for re-examination.
Subsequent proceedings:
Three decisions with similar reasoning were issued the same day by the Council of State. N° 379378, N° 397745, N° 395821.
Observations/comments:
This case summary was written by Laure Joly, LLM student at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Administrative Justice Code |
| France - Entry and Stay of Foreigners and Asylum Law Code |
| France - Law: n° 91-647 of 10 July 1991 |