France - CRR, Plenary session, 29 July 2005, Miss T., n°519803
| Country of Decision: | France |
| Country of applicant: | Cameroon |
| Court name: | Refugee Appeals Board /Commission des recours des réfugiés (CRR) |
| Date of decision: | 29-07-2005 |
| Citation: | CRR, SR, 29 juillet 2005, Mlle T., n° 519803 |
| Additional citation: | Commission des recours des réfugiés, Sections réunies, 29 juillet 2005, Mlle T., n° 519803 |
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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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:
Women who want to escape from a forced marriage, whose attitude is perceived by whole or part of the society of their country of origin as an infringement of the applicable customs and laws, and who therefore face a risk of persecution against which the authorities are unable or unwilling to provide protection, must be considered as members of a social group in the meaning of Article 1A(2) of the 1951 Refugee Convention; when these conditions are not fulfilled, in particular when their behavior is not perceived as an infringement of the social order, these women nevertheless face the risk of suffering inhuman or degrading treatment and should therefore be granted subsidiary protection.
Facts:
The applicant, from Cameroon, lived and worked in Douala with her three children and her common-law husband. When her father died, she went to his funeral in her native village. She refused to become the 11th wife of the leader of the village, despite pressure from her family. She was raped and managed to escape. She was tracked in Douala and her common-law husband was beaten twice while she was absent. The authorities refused to register her complaint. She fled her from Cameroon.
The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected her asylum application. She challenged this negative decision before the Cour Nationale du Droit d’Asile (National Asylum Court) CRR/CNDA.
Decision & reasoning:
As a principle, the CRR/CNDA stated that women who want to escape from a forced marriage, i.e. concluded without their full and informed consent, whose attitude is perceived by whole or part of the society of their country of origin as an infringement of the applicable customs and laws, and who therefore face a risk of persecution against which the authorities are unable or unwilling to provide protection, must be considered as members of a social group in the meaning of Article 1A(2) of the 1951 Refugee Convention; when these conditions are not fulfilled, in particular when their behavior is not perceived as an infringement of the social order, these women nevertheless face the risk of suffering inhuman or degrading treatment.
In the present case, the CRR/CNDA concluded however that the alleged facts could not be considered as established and the fears as well-founded. The applicant did not qualify either as refugee or as beneficiary of subsidiary protection.
Outcome:
The claim was rejected.
Observations/comments:
Article L.712-1 Ceseda reads [unofficial translation]:
“Subject to the provisions of Article L. 712-2 [exclusion], subsidiary protection is granted to any person who does not qualify for refugee status under the criteria defined in Article L. 711-1 and who establishes that she/he faces one of the following serious threats in her/his country:
a) death penalty;
b) torture or inhuman or degrading treatment or punishment;
c) serious, direct and individual threat to a civilian’s life or person by reason of generalised violence resulting from a situation of internal or international armed conflict”.
See also a more recent CNDA decision which gives a more detailed definition of a particular social group (CNDA, 23 décembre 2010, Mlle D., n°09011388, also summarized in this database [France_046]).
NB: The CNDA (National Asylum Court) was called CRR (“Commission des recours des réfugiés”, Refugee Appeals Board) until the Act n°2007-1631 of 20 November 2007.
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 |