France - CNDA, 18 October 2011, M. P., Mme P. & Mme T., n°11007041, n°11007040, n°11007042

Facts:

M.P., his wife Mrs. P., and her mother Mrs. T., are citizens of Sri Lanka of Tamil origin. They fear persecution upon return due to the couple's activism in favor of the LTTE, the support given by Mrs. P’s mother to this movement and the support given by Mr. P.  regarding his work for the members of the Tamil community. Mr. P. was arrested several times and his wife and his mother were subjected to ill-treatment.

The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected their asylum applications. They challenged these decisions before the National Asylum Court (Cour nationale du droit d’asile, CNDA).

Decision & reasoning:

Citing firstly the case law presented by the applicants’ lawyer to support their claim for subsidiary protection, the CNDA stated that, in its judgment N.A. vs. United Kingdom dating from 17 July 2008, the ECtHR set as a principle that the competent national judge had to base its assessment of the risk of inhuman or degrading treatment on relevant, transparent and up-to-date COI and that its findings were based on the existing factual situation at the date of its ruling.

The CNDA added that the CJEU judgment dating from 17 February 2009 on a preliminary ruling relating to the interpretation of the provisions of Article 15 (c) of the Qualification Directive (Elgafaji Case, C-465/07) was restricted to stating principles on the assessment of the individual risks in case of return to the country of origin, considering both the personal and current risk claimed by the applicant and the degree of violence prevailing in the country.

The CNDA concluded that these judgments did not exempt an applicant for subsidiary protection from establishing an individual risk of persecution or ill-treatment, by attempting to prove personal factors of risk that he/she would face in case of return to his/her country of origin. The Court insisted that the only valid ground for subsidiary protection was Article L.712-1 b) Ceseda [which transposes Article 15 (b) of the Qualification Directive] since the situation of generalised violence which prevailed in Sri Lanka ended with the military crushing of the LTTE combatants in May 2009.

In the present case, the CNDA considered that the facts were not established and that the fears of the applicants were not well-founded. The applicants could not be seen as personally facing persecution within the meaning of Article 1A(2) of the 1951 Refugee Convention or one of the serious threats mentioned under  Article L.712-1 Ceseda, in case of return to their country of origin.

Outcome:

The applicants claims were rejected.

Observations/comments:

Article 15 of the Qualification Directive is transposed in French legislation by Article L.712-1 Ceseda, which reads as follows [unofficial translation]:

“Subject to the provisions of Article L. 712.2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711.1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.

Under French legislation, the threat under c) should thus not only be “serious and individual” (as in the Qualification Directive) but also “direct”. Also, French legislation refers to “generalized” violence rather than “indiscriminate” violence.

This CNDA decision went back over the case law of the Court since its decision made in plenary session (CNDA, SR, 27 juin 2008, M.B., n°581505) which considered that the situation which prevailed at that time in some areas of the North and the East of Sri Lanka had to be considered as a situation of generaliszed violence resulting from an internal armed conflict within the meaning of Article L.712-1 c) Ceseda.  (See another CNDA decision CNDA, 2 novembre 2010, M. S., n°08008523.

The CNDA is however slightly confused in its reasoning since it stresses the need for the applicant for subsidiary protection to establish an individual risk of persecution or ill-treatment.

NB: The sources which are cited by the CNDA in this decision are not the result of its own research but were presented by the applicant’s lawyer.