France - Council of State, 23 February 2011, n°338271
Keywords:
| 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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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
The suppression of the expression of racist opinions in a State does not constitute persecution pursuant to the 1951 Refugee Convention, if actions of this kind are considered justified and proportionate following analysisof the particular circumstances.
Facts:
The French Office for the Protection of Refugees and Stateless Persons (the Ofpra) requested the Council of State to quash the decision of the National Asylum Court (CNDA) recognising the refugee status of an applicant who had expressed racist opinions in public and who had been placed in police custody following several altercations. The CNDA held that the Applicant feared persecution due to his political opinions if he were to return.
Decision & reasoning:
The Council of State began by reiterating the terms of Article 1A(2) of the 1951 Refugee Convention.
The Council of State then went over the facts, according to which the Applicant had expressed his racist opinions in public and had also been involved in several altercations which led to his being placed in police custody. The Council of State concluded that in “failing to investigate whether the actions of the Namibian authorities were unjustified by the need to suppress the expression of racist opinions [by the Applicant],or carried a disproportionate sanction, the CNDA had made an erroneous decision through a mistake of law” and that the Ofpra had reason to request that the decision in question be quashed.
Outcome:
The decision of the CNDA was quashed.
The case was referred back to the CNDA
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) |
| France - CJA (Code of Administrative Justice) |