France - CNDA, 29 January 2008, Mr. D., n°602367
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:
Homosexuals in Morocco form a social group within the meaning of Article 1A(2) of the 1951 Refugee Convention for reasons of common characteristics which define them in the eyes of Moroccan criminal law and society.
Facts:
Mr. D., a Moroccan national, was subjected to serious violence and rejected from his family because of his homosexuality. He left Morocco and applied for asylum in France. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected his claim. On appeal, he requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant him refugee status.
Decision & reasoning:
The CNDA stated that homosexuality is on the one hand, a punishable offense according to the Moroccan Criminal Code which imposes prison sentences and on the other hand, sometimes violently rejected by a growing part of the population, encouraged by religious fundamentalists, while the authorities in charge of the protection of the population very often refrain from punishing such violence and leave the victims without any protection.
In these circumstances, the CNDA considered that homosexuals in Morocco shall be seen as forming a social group in the meaning of Article 1A(2) of the 1951 Refugee Convention for reasons of common characteristics which define them in the eyes of Moroccan criminal law and society.
The applicant had a well-founded claim for refugee status.
Outcome:
The applicant was granted refugee status.
Observations/comments:
This CNDA decision explicitly mentions the membership of a particular social group ground. In the definition of the group, the Court does not seem to require that the applicants manifest their sexual orientation by their external behavior. See comments under CNDA, 23 December 2010, Mr. K., n°08014099
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
Other sources:
Moroccan Criminal Code