Spain - High National Court, 23 March 2011, nº 1423/2011
Keywords:
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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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." |
Headnote:
The case refers to an appeal before the High National Court brought by the Appellant against the decision of the Central Court for Contentious-Administrative Proceedings to uphold the Ministry of the Interior’s denial of asylum.
The Appellant is a Nigerian national.In the application she claimed that when her father died, she was left in debt to the chief of the tribe to which they belonged.In order to settle the debt, the Applicant was forced to marry the tribal chief and was kept as a prisoner.
Therefore, the High National Court upheld the Applicant’s appeal as it deemed the situation suffered by women in Nigeria, and particularly forced marriage, constitutes a form of persecution for membership of a particular social group.
Facts:
The Appellant is a Nigerian national and claimed that when her father died, he left unpaid debts to a man who was the chief of the tribe to which they belonged.In order to settle the debt, the Applicant was forced to marry the tribal chief in 2005. This man kept her prisoner until she managed to escape in 2009.
Decision & reasoning:
The High National Court rejected the decision by the Central Court for Contentious-Administrative Proceedings and also reversed the challenged judgment as it deemed the Appellant’s narrative of persecution to fall within the definition of a refugee in asylum law and did not present grounds of inadmissibility (as established by the Court of First Instance). Therefore, the purpose of this appeal is the admissibility of the application based on the aforementioned grounds of persecution.
In effect, according to the reasoning of the decision-making body, the allegation of persecution arising from tribal customs and beliefs (such as circumcision, forced marriage, witchcraft etc.)is not in principle excluded from the ambit of asylum or the recognition of refugee status, providing all other elements of the definition and legal requirements are present (individual persecution, tolerance thereof or lack of protection by the State, etc.).
Furthermore, the High National Court based its decision primarily on the Supreme Court’s case law criteria which establishes that the "absence of protection and the social, political and legal marginalisation of women along with the evident, severe violation of their human rights” constitutes grounds for asylum as they are within the framework of gender based and social persecution.Additionally, the decision was based on the UNHCR reports on the situation of women in Nigeria which the Supreme Court has also adopted as legal criteria for reference in this matter.According to these reports, women in Nigeria routinely suffer violations of their fundamental rights. For example, child marriages are common, women do not have any inheritance rights, and some estimates indicate that the majority of women undergo genital mutilation.
Outcome:
The appeal was upheld and therefore the challenged judgment was reversed.
Observations/comments:
The object of this appeal was the decision by the Central Court of Contentious-Administrative Proceedings number9 in the Summary Proceedings 227/2009, which rejected the appeal brought by the Appellant against the Ministry of the Interior’s decision of 26th May 2010 denying recognition of refugee status.
In regards to the judgment under discussion, it appeared that section (b) of Article 5.6 of Act 5/84 of 28th March (amended by Act 9/94 of 19th May) provided cause for inadmissibility because none of the grounds which would allow refugee status to be recognised had been invoked, such as fear of persecution on grounds of race, ethnicity, religion, membership of a particular social group, or political opinion.We find that the only reason for the finding of inadmissibility of the application for international protection is tied to questions of merits and that is why the High National Court evaluated whether the application had any relation to the groundswhich would allow recognition of refugee status.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Spain - Ley 5/1984 |
| Spain - reguladora del derecho de asilo y de la condición de refugiado (Act regulating the right to asylum and refugee status) - Art 5(6) |
Other sources:
- UNHCR report of 22nd April 2009
- UNHCR reports on the situation of women in Nigeria