France - CNDA, 10 June 2008, Mr. A., n°462102
Keywords:
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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. |
Headnote:
The situation of the homosexuals which currently prevails in Iraq enables them to be considered as forming a group whose members are likely to face acts of such gravity that they may amount to persecution in the meaning of Article 1A(2) of the 1951 Refugee Convention.
Facts:
Mr. A. is an Iraqi national. His father, a member of the Baath Party and a commander of a special unit under Saddam Hussein’s regime, took part in the repression against the Kurdish population. He was killed in 1991 by the Kurds, along with his brother in 1992. Furthermore, the applicant belongs to the LGB community and had a love affair with a friend. In 2003, his sexual orientation was discovered by his family and his lover was violently beaten up by his brothers. He left Iraq for these two reasons and applied for asylum in France. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) granted him subsidiary protection. On appeal, he requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant him refugee status.
Decision & reasoning:
The CNDA considered that the facts regarding the homosexuality of the applicant were established.
The Court stated that the Iraqi Criminal Code currently in force includes provisions which enable the authorities to institute proceedings against homosexuals. The Court added that the Iraqi homosexual community is regularly subjected to serious violence and honour killings which are perpetrated with impunity.
The CNDA therefore found that the situation of the homosexuals which currently prevails in Iraq enables to applicant to be considered as a member of a group whose members are likely to face acts of such gravity that they may amount to persecution in the meaning of Article 1A(2) of the 1951 Refugee Convention.
Consequently, the applicant can be recognised as a refugee.
Outcome:
The applicant was recognised as a refugee.
Observations/comments:
This CNDA decision does not explicitly mention the membership of a particular social group ground. In the definition of the group, the Court does not seem to require that the applicants manifest their sexual orientation by their external behavior but the definition includes persecution. See comments under CNDA, 23 December 2010, Mr. K., n°08014099.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.721-2 |
Other sources:
Iraqi Criminal Code