France - CNDA, 6 July 2009, Ms. D., n°635611/08016081
| Country of Decision: | France |
| Country of applicant: | Guinea |
| Court name: | National Asylum Court/Cour nationale du droit d’asile (CNDA) |
| Date of decision: | 06-07-2009 |
| Citation: | CNDA, 6 juillet 2009, Mme D. épouse K., n° 635611/08016081 |
| Additional citation: | Cour nationale du droit d’asile, 6 juillet 2009, Mme D. épouse K., n° 635611/08016081 |
Keywords:
| Keywords |
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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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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:
A woman having undergone female genital mutilation FGM, who benefitted from reconstructive surgery in France, an act considered as an infringement of Guinean customs despite its official ban, must be considered as a member of the social group formed by women who oppose female genital mutilation practiced in Guinea.
Facts:
The applicant, from Guinea of Diakhanke origin, argued, inter alia, that since she was separated from her husband, she would be obliged, if returned to her country of origin, to reintegrate into her family circle and risk being married against her will. Her fears were reinforced by the fact that in September 2008 she benefitted from reconstructive surgery in France related to having undergone FGM. . Her first application for asylum was rejected both by the French Office for the Protection of Refugees and Stateless Persons (Ofpra) and the Cour Nationale du Droit d’Asile (National Asylum Court) (CNDA). The above mentioned elements support her subsequent application, which was rejected by the Ofpra. The applicant challenged this negative decision before the CNDA.
Decision & reasoning:
The Court considered that the applicant had a well-founded fear of being persecuted in case of return to Guinea because of the reconstructive surgery she underwent in France, which would be seen as an infringement of the customs of her community and which would not be ignored by her family, in which she was likely to live after her separation from her husband. Under these circumstances, the Court considered that the applicant would face violence targeted against her person, without being able to avail herself of the protection of the Guinean authorities because of the high prevalence of the practice of FGM in this country, in particular within her ethnic group, despite the official stance of the Guinean State against female genital mutilation and the existence of legal provisions punishing the perpetrators.
In the present case, the Court concluded that the applicant must be considered as a member of the social group formed by women who oppose female genital mutilation practiced in Guinea.
Outcome:
Refugee status was granted to the applicant.
Observations/comments:
This decision is in line with the so-called “Sissoko” case law. According to this case law (inspired by the decisions CRR, Sections réunies, 7 décembre 2001, Sissoko, n°361050 et n°373077), refugee status is recognised to asylum applicants who have fears of persecution because they refused to subject their children to female genital mutilation in their country of origin.