France - Council of State, 17 December 2010, Ofpra vs. Miss A., n°315822
| Country of Decision: | France |
| Country of applicant: | Ivory Coast |
| Court name: | Council of State/Conseil d’Etat |
| Date of decision: | 12-12-2010 |
| Citation: | Conseil d’Etat, 17 décembre 2010, Ofpra c/ Mlle A., n° 315822 |
Keywords:
| Keywords |
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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
Subsidiary protection can only be granted if all the criteria for qualifying as a refugee are not fulfilled.
Facts:
The applicant, a national from the Ivory Coast, had her asylum claim rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, the Cour Nationale du Droit d’Asil (National Asylum Court) (CNDA) granted subsidiary protection. The Ofpra requested the Council of State to quash this decision and to grant the applicant refugee status.
Decision & reasoning:
The Council of State recalled the provisions of Article 1 A (2) of the 1951 Refugee Convention and of the Ceseda relating to the definition of a refugee, subsidiary protection and actors of persecution or serious harm (article L.711-1; article L.712-1; article L.712-3; article L.713-2).
The Council of State stated that in granting subsidiary protection to the applicant, the CNDA indicated that the applicant had organised protest meetings against governmental policy, that her sister had been killed in a fire caused by loyalist forces and that she shared, together with her father, the ideas for an opposition party and that she could not avail herself of the protection of the Ivorian authorities.
The Council of State therefore considered that the CNDA, by refusing to recognise the applicant as a refugee under the 1951 Refugee Convention after noting that the threats she could face were linked to her political opinions and activities without explaining that the other criteria for qualifying as a refugee were not fulfilled, made a legal error and did not make a sufficiently reasoned decision.
The Council of State concluded that the Ofpra’s request to quash the decision of the CNDA was well-founded. The case was referred to the CNDA for a fresh decision.
Outcome:
The decision of the CNDA granting subsidiary protection instead of refugee protection was quashed. The case was referred to the CNDA.
Observations/comments:
This decision of the Council of State is more reasoned than the decision CE, 24 novembre 2010, Ofpra c. Mlle A., n° 317749 also summarised in this database. Both decisions recall the importance of the primacy of the 1951 Refugee Convention over subsidiary protection.