France - CNDA, 29 July 2011, Miss O., n°10020534
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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." |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
Young Nigerian women, especially those coming from the region of Benin City (State of Edo), who were forced to prostitute themselves in Europe in a transnational network of human trafficking, and who managed to extricate themselves from this network and to stop this forced activity, should not be seen as members of a particular social group in Nigeria. However, they face inhuman or degrading treatment in case of return to their country of origin and should therefore be granted subsidiary protection.
Facts:
Miss O. comes from Wali, in the Delta State, Nigeria. She opposed a forced marriage and FGM that her mother in law wanted to impose her. She escaped from the family house and met a woman who offered her work in Europe as a hairdresser. She ended up in Spain where she was forced to prostitute herself for several months before she fled to France.
The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected her asylum application. She challenged this decision before the National Asylum Court (Cour nationale du droit d’asile, CNDA).
Decision & reasoning:
The CNDA firstly assessed the case in light of the refugee definition and cited the provisions of Article 1A(2) of the 1951 Refugee Convention and of Article 10.1(d) of the Qualification Directive.
The CNDA considered that the facts relating to the fear of being subjected to a forced marriage and to FGM were not established.
Regarding the fear linked to prostitution, the CNDA considered that young Nigerian women, especially those coming from the region of Benin City (State of Edo), who were forced to prostitute themselves in Europe, and in particular in France, in a transnational network of human trafficking for the purpose of sexual exploitation and who managed to extricate themselves from this network and to stop this forced activity, should not be seen as members of a particular social group in Nigeria which would possess its own identity because it was perceived as different by Nigerian society and, consequently, subjected as such to specific persecution. The CNDA referred in particular to the fact that Nigerian authorities signed and ratified in 2001 and 2002 the United Nations Convention against Transnational Organised Crime and its Protocol (Palermo Protocol), passed legislation in 2003 punishing trafficking in persons and enacted in 2006 a National Action Plan against trafficking. The Court also recalled that Nigerian authorities organised awareness raising and prevention campaigns, and prosecuted and sentenced a number of traffickers.
In this context, the CNDA considered that the applicant could not, on the ground of her membership of a particular social group, be recognised as a refugee.
The CNDA then assessed the case in light of the definition of subsidiary protection and cited the provisions of Article L.712-1 Ceseda.
The CNDA considered that the facts relating to prostitution were established. The Court found that, given her personal and family situation, the applicant could not avail herself of the effective protection of the authorities of her country of origin.
The CNDA concluded that the applicant should be considered as facing, in her country of origin and by members of the network which brought her to Spain and to which she still owed a lot of money, one of the serious threats mentioned under Article L.712-1 b) Ceseda [inhuman or degrading treatment].
Outcome:
The applicant was granted subsidiary protection.
Observations/comments:
In this decision, the CNDA assesses the case firstly in light of the refugee definition and then in light of the definition of subsidiary protection. On the first aspect (refugee status), the Court excludes the persecution ground of membership of a particular social group for victims of prostitution originating from the State of Edo in Nigeria, contrary to a previous decision (well reasoned) of another judgment section of the CNDA (cf. CNDA, 29 avril 2011, Mlle E., n°10012810, also summarised in this database. The CNDA nevertheless considers that a serious threat (within the meaning of subsidiary protection) exists, without however giving any criteria for the definition of inhuman or degrading treatment.
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(b) |
Other sources:
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime
2003 Nigerian law punishing trafficking in persons and creating the National agency for the prohibition of trafficking in persons (NAPTIP)
2006 National Action Plan against Trafficking.