Poland - Supreme Administrative Court in Warsaw, 12 March 2013, II OSK 126/07

Facts:

A citizen of the Russian Federation who is of Chechen ethnicity submitted an application for refugee status. He said that his fear of persecution was connected with his membership of a particular social group, said group being the close relatives of Chechen fighters. It is for this reason that the Applicant was on two occasions assaulted by masked men. On the first occasion, in February 2003, unidentified assailants tried to force the Applicant to divulge information about his cousin, a Chechen fighter. On the second occasion, on 7 July 2005, the Applicant and his wife were interrogated and assaulted at the offices of the Security Service in connection with the search for the Applicant’s brother-in-law, a Chechen fighter, who since 2003 had been living with the Applicant’s family and hiding from the Russian authorities. The Applicant and his wife were released after the brother-in-law voluntarily gave himself up in return for the release of his sister. The fighter was accorded refugee status in Poland and as a result the Applicant moved for the materials gathered in the proceedings concerning his brother-in-law to be included in the case file and for his wife and her brother to be heard as witnesses. Both the first- and second-instance authorities refused to accord the foreigner refugee status and granted a permit for tolerated stay. The Regional Administrative Court in Warsaw dismissed the appeal against the decision of the second-instance authority. The foreigner lodged a cassation appeal against this judgment with the Supreme Administrative Court.

Decision & reasoning:

It cannot be assumed a priori that a member of a refugee’s family is not subject to protection under the Convention because the persecution does not relate to him directly. Persecution due to membership of a particular social group refers to social or class membership of a group determined by factors that include origin. A social group comprises persons of a similar origin, customs or social status. This is confirmed in the preamble to Council Directive 2004/83/EC. Recital 27 of the preamble states that family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for refugee status.

In the examined case the authorities wrongly assumed, therefore, that the fact that the Applicant’s brother-in-law had been accorded refugee status could not affect the decision to accord refugee status to the Applicant. They found that the persecution did not directly relate to the Applicant. It should be noted that the Geneva Convention links the recognition of refugee status with a well-founded fear of persecution for the reasons cited therein. One such reason is membership of a particular social group. To recognise that the Applicant is a member of a group at risk of persecution means, therefore, that the persecution has an individual character. If, therefore, there are grounds for believing that being a family member of a recognised refugee meets the condition of membership of a particular social group, then it is only by demonstrating the absence of a well-founded fear of persecution for this reason that refusal of the application can be justified.

Outcome:

The judgment of the Regional Administrative Court in Warsaw and the decision of the Polish Refugee Board were overturned.

Observations/comments:

The judgment presents an interpretation of the concept of social group in relation to a situation in which the authorities provide applicants – as in this case – with another complementary form of protection, such as on the grounds of respect for family life, and not on the grounds of persecution as defined in the Geneva Convention.