France - CNDA, 28 July 2009, Miss D., n°632210/08016675
| Country of Decision: | France |
| Country of applicant: | Guinea |
| Court name: | National Asylum Court/ Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 28-07-2009 |
| Citation: | CNDA, 28 juillet 2009, Mlle D., n° 632210/08016675 |
| Additional citation: | Cour nationale du droit d’asile, 28 juillet 2009, Mlle D., n° 632210/08016675 |
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:
In countries where there is a high prevalence of female genital mutilation (FGM), persons who have demonstrated that they oppose this practice have thus infringed the customary norms of their country of origin and therefore can be considered as having a well-founded fear of being persecuted for reasons of membership of a particular social group in the meaning of Article 1A(2)of 1951 Refugee Convention.
Facts:
The applicant from Guinea, of Fulani origin, was born in 1995 in Conakry and fled to France in April 2008. The applicant fled to escape FGM and persecution committed by members of her family after she demonstrated her opposition to this practice. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) considered that she did not qualify for refugee status and granted her subsidiary protection. The applicant requested the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA) to grant her refugee status.
Decision & reasoning:
The Court stated firstly, as a principle, that “in countries with a high prevalence of FGM, persons who have demonstrated that they were opposed to this practice themselves or who have refused to subject their minor children to it, have thus infringed the customary norms of their country of origin and therefore face violence targeted against themselves as well as the risk that their minor daughters might face FGM against their will; that they can be considered as having a well-founded fear of being persecuted for reasons of membership of a particular social group in the meaning of Article 1A(2) of 1951 Refugee Convention, when they are not able to be protected by the public authorities of their country”.
In the present case, the Court accepted that the applicant, who was 14 years old, was old enough to oppose to the practice of FGM, which is customary in her country of origin, in particular within her ethnic group; in addition, under the protection of her older sister in Conakry, she managed to escape from the practice of FGM which her family, located outside of the capital wanted to subject her to; she was however rejected by her family because of her behavior and faced a constant risk of being abducted by her maternal grandmother and by her family on her father’s side who wished to subject her to FGM. The Court therefore considered that she had a well-founded fear of persecution within the meaning of the 1951 Refugee Convention if returned to her country of origin.
Outcome:
Refugee status was granted to the applicant.
Observations/comments:
This decision is in line with the so-called “Sissoko” case law. According to this case law (inspired by the decisions CRR, Sections réunies, 7 décembre 2001, Sissoko, n°361050 et n°373077), refugee status is recognized to asylum applicants who fear persecution because they refused to subject their children to female genital mutilation in their country of origin.