France - CNDA, 20 December 2010, Mr. N., n°10004872
| Country of Decision: | France |
| Country of applicant: | Congo (DRC) |
| Court name: | National Asylum Court/Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 20-12-2010 |
| Citation: | Cour nationale du droit d’asile, 20 décembre 2010, M.N., n°10004872 |
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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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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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. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
Given the situation of particular vulnerability and constraint of the applicant, a former child soldier from the DRC, there is no reason to apply any of the exclusion clauses of Article 1F of the 1951 Refugee Convention to him.
Facts:
The applicant is a national from the Democratic Republic of Congo and used to live in the province of North Kivu.
When he was 15 years old, in December 2007, he was abducted by rebels from the National Congress for the Defense of the People (Congrès national pour la défense du people, CNDP) who kept him in a camp. He was tortured and drugged and had to follow a military training. He was then forced to fight the national armed forces. He was also forced to commit exactions against civilians. He could not escape from his superiors’ orders. He was released around February 2009. When he returned home, he discovered that his father had been killed and that the other family members had fled. He received death threats from villagers because of his involvement in the fighting and fled to Kinshasa where he took a flight to France.
The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his asylum application. He challenged this decision before the National Asylum Court (Cour nationale du droit d’asile, CNDA).
Decision & reasoning:
After recalling the facts, the CNDA concluded that the applicant had a well-founded fear of being persecuted, within the meaning of the 1951 Refugee Convention, in case of return to his country of origin for reason of imputed political opinions linked to his situation of child soldier within the CNDP.
The CNDA added that given his situation of particular vulnerability and constraint, there was no reason to consider that he was responsible for serious non-political crimes within the meaning of Article 1Fb) of the 1951 Refugee Convention or that he fell under any other Article 1F exclusion clauses.
The CNDA considered that the applicant had a well-founded claim for refugee status.
Outcome:
The applicant was granted refugee status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |