France - CNDA, 23 September 2011, Mr. D., n°11007337
| Country of Decision: | France |
| Country of applicant: | Mauritania |
| Court name: | National Asylum Court/Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 23-09-2011 |
| Citation: | Cour nationale du droit d’asile, 23 septembre 2011, M.D., n°11007337 |
Keywords:
| 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:
An applicant who demonstrated his will to put an end to his situation of servitude in Mauritania was considered as having a behavior which infringes on the customs of this country. He must be considered as a member of a social group whose members are, due to common characteristics which define then in the eyes of the Mauritanian society, likely to face persecution against which authorities are not able to protect them.
Facts:
The applicant, of Mauritanian nationality and of Soninke origin, was, like his parents, in a situation of servitude for a master of the same ethnic origin. When he became aware of his situation of slavery, thanks to friends who were sensitive to this concern, he tried without any success to lodge a complaint against his master. His master managed to take hold of him and confined him to the house. Finally, he managed to escape when his master was at hospital. After this his master began legal proceedings against him in Mauritania on false grounds.
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:
The CNDA recalled the provisions of Article 1A(2) of the 1951 Refugee Convention and of Article 10.1(d) of the Qualification Directive.
The CNDA explained that despite the abolition of slavery in Mauritania in 1981 and the passing of a law which criminalised this practice in 2007, it was evident from up-to-date, relevant and publicly available information that situations of slavery endured in this country and that perpetrators were rarely punished, since courts were often reluctant to deal with complaints of victims.
In the present case, the CNDA considered that the behavior of the applicant, who demonstrated his will to put an end to his situation of servitude, was considered by a section of Mauritanian society as an infringement of the customs of his country.
The CNDA found that the applicant should be considered as a member of a social group whose members are, due to common characteristics which define then in the eyes of the Mauritanian society, likely to face persecution against which authorities are not able to protect them.
The CNDA concluded that the applicant had a well-founded fear of being persecuted in case of return to his country.
Outcome:
The applicant was granted refugee status.
Observations/comments:
Although the Court explicitly cites Article 10.1(d) of the Qualification Directive in this decision, the CNDA uses its “traditional” definition of the social group, which includes persecution and the notion of infringement of customs. See comments on this persecution ground in French case law under CNDA, 23 décembre 2010, Mlle D., n°09011388
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
Follower Cases:
| Follower Cases |
| Greece - Special Appeal Committee, 23 July 2012, D.C. v. the Chief of Security and Order of the (former) Ministry of Public Order, Application No. 95/127059 |
Other sources:
Report of the United Nations General Assembly, 24 August 2010, Report of the Special Rapporteur on contemporary forms of slavery, including its causes et consequences – Mission to Mauritania, A/HRC/15/20/Add. 2.