France - Council of State, 21 December 2012, No. 332491
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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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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:
Membership of a social group is an objective social fact not dependent on members of the group or, if they are not in a position to do so, their next of kin, expressing their membership of that group.
Facts:
The Applicant requested the Council of State to set aside the decision of the National Asylum Court (CNDA) refusing refugee status for her minor daughter born in France, and to recognise the latter’s refugee status due to the risk of excision in the event of a return to her country of origin.
Decision & reasoning:
The Council of State reiteratedthe terms of Article 1A2 of the 1951 Refugee Convention and the provisions of the Qualification Directive relating to the social group, adding that “membership of a [social group] is an objective social fact not dependent on members of the group or, if they are not in a position to do so, their next of kin, expressing their membership of that group”.
The Council of State deduced from this that, in a population in which female sexual mutilation is widely practised to the point of constituting a social norm, children and adolescents who are not mutilated constitute a social group.
However, in order to establish the merits of the application for protection, the Council of State required the party concerned to supply detailed information, specifically in relation to family, geography and sociology, concerning the risks that she personally faced.
The Council of State added that refugee status could be refused where the party concerned was able to access protection in part of the territory of her country of origin, which she was able to access in total safety, in order to settle and live a normal family life.
The Council of State furthermore affirmed that the 1951 Refugee Convention only requires the recognition of refugee status if it is impossible for the person to claim protection from his/her country of nationality. Consequently, the fact that the person for whom refugee status is sought was born outside that country is not in itself an obstacle to the granting of protection under the Convention.
Finally, the Council of State held that, in making recognition of refugee status as a member of a social group dependent on the person expressing their membership of that group, the CNDA had made a decision that was void for error of law in relation both to the definition of the social group and to the establishment of a proven link between that person and the group.
Outcome:
The decision of the CNDA was quashed.
The case was referred back to the CNDA.
Observations/comments:
On the same date, the Council of State, meeting in Assembly, examined two other cases concerning the protection to be granted to parents of young girls born in France and threatened with excision in the event of a return to their country of origin.
In case n°332492 (CE, 21 December 2012, n°332492), the applicant, the mother of a daughter born in France and threatened with excision if she returned, applied to the Council of State to quash the decision of the CNDA refusing her refugee status. The Council of State held that the CNDA had been right to reject her appeal, finding no evidence that she might be regarded as belonging to a social group, due to her opposition to the sexual mutilation which her daughter, born in France, would risk were she to return with her to Ivory Coast, and therefore likely to be personally at risk of persecution pursuant to Article 1A2 of the 1951 Refugee Convention. The Council of State therefore dismissed the Applicant’s appeal.
In case n°332607 (CE, 21 December 2012, n°332607), the Ofpra requested the Council of State to quash a decision of the CNDA granting subsidiary protection to an Applicant, the mother of a daughter born in France and threatened with excision in the event of a return to Ivory Coast. The CE considered that the CNDA had made a mistake of law in holding that the Applicant could, solely through her opposition to the practices of female sexual mutilation, be regarded as being at risk of inhuman or degrading treatment, without considering whether she might seriously fear being directly and personally at risk of such treatment if she were to return. The Council of State therefore quashed the decision of the CNDA and referred the case back to the CNDA.
The Council of State therefore refused any form of international protection – refugee status or subsidiary protection – to the parents. No extension of the child’s protection to its parents was contemplated. They therefore found themselves in a legal vacuum.
The Council of State did not have to rule on the extension of international protection (refugee status or subsidiary protection) to the parents. That question therefore remained pending.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |