France - CNDA, 29 April 2011, Miss E., n°10012810
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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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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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. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
Prostitutes who come from the State of Edo, and who are both victims of human trafficking and anxious to extricate themselves actively from these networks, form a group whose members are, by reason of these two common characteristics which define them, likely to be subjected to persecution within the meaning of Article 1A(2) of the 1951 Refugee Convention, without being able to avail themselves of the protection of the Nigerian authorities. They are members of a particular social group.
Facts:
Miss E. comes from Benin City, located in the State of Edo, Nigeria. In her country of origin, she was approached by a human trafficking network which offered her a job in Europe. Once in France, she was forced to prostitute herself. She gave the names of the managers of the network to the police but was only able to give first names. Her asylum application was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, she requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant her refugee status.
Decision & reasoning:
Relying on numerous sources of COI, the CNDA stated that many young women who are recruited in the State of Edo, and who are exploited by force by human trafficking networks, are subjected to a form of violence for reason of their gender which shall be considered as persecution. In case of return to their country, they face serious reprisals by traffickers, as well as real risks of being subjected to human trafficking again, or being ostracised by their family or community or seriously discriminated against.
Quoting the laws from the State of Edo relative to prostitution and procuring, and accepting the absence of effective criminal proceedings there, the CNDA considered that the systematic character of the absence of protection in this State must be seen not solely as a risk of inhuman and degrading treatment in the meaning of Article L.712-1 Ceseda [on subsidiary protection].
The CNDA considered that prostitutes who come from the State of Edo and who are both victims of human trafficking and anxious to extricate themselves actively from these networks, form a group whose members are, by reason of these two common characteristics which define them, likely to be subjected to persecution in the meaning of Article 1A(2) of the 1951 Refugee Convention, without being able to avail themselves of the protection of the Nigerian authorities, and notwithstanding the fact that this State ratified the Palermo Protocol in 2001 and promulgated a law against human trafficking in 2003.
The CNDA concluded that Miss E., who established that she comes from the State of Edo in Nigeria and that she was eager to break the links with the above mentioned human trafficking network, must be considered as a member of a particular social group within the meaning of Article 1A(2) of the 1951 Refugee Convention and as having a well-founded fear of being persecuted in case of return to her country of origin. She can therefore be recognised as a refugee.
Outcome:
The applicant was recognised as a refugee.
Subsequent proceedings:
This decision was subsequently quashed by the Council of State in a decision No. 350661 of 25 July 2013 - click here for summary and judgment. The Council of State's decision was sent back to the CNDA who found that victims of trafficking from the Edo State do, indeed, share a common background and distinct identity which falls within the definition of a particular social group. The applicant was given refugee status - click here for summary and judgment.
Observations/comments:
This recent CNDA decision shows an interesting example of a reasoned decision which relies on several sources of COI – which is still relatively uncommon in the practice of the Court .
Its structure might however be questioned, in particular the relevance of examining firstly the risk of inhuman and degrading treatment within the meaning of subsidiary protection before assessing the ground of membership of a particular social group in the meaning of the 1951 Refugee Convention.
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.712-1 |
Other sources:
Global Report on Trafficking in Persons, UNODC, 2009
Article "Sexual harassment: The Experience of Out-of-School Teenagers in Benin City, Nigeria"», African Journal of Reproductive Health, vol. 9, 3 December 2005
Chapter 21 of the 1990 Criminal Code
Laws from the State of Edo
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (also referred as the ”Palermo Protocol”) UN 2000