Case summaries

An applicant may be granted refugee status under Article 1 of the 1951 Geneva Convention for fear of persecution based on sexual orientation. This depends on whether or not, according to the conditions prevailing in the country of origin, persons sharing a sexual orientation may be regarded as a social group within the meaning of the Convention.

The applicant, an ethnic Kurd and a Sunni Muslim from Aleppo, Syria was granted temporary protection under the Danish Aliens Act Art. 7 (3).

A complaint to the Refugee Appeals Board was lodged claiming refugee status under the Danish Aliens Act Art 7 (1), alternatively subsidiary protection under the Danish Aliens Act Art 7 (2).

The applicants mother was granted refugee status under the Danish Aliens Act Art. 7 (1) due to her work in a health clinic treating injured insurgents.

The majority of the Board, referring to country of origin information, found that the applicant, as part of the mother’s household, if returned to Syria would be concretely and individually at risk of persecution.

The applicant thus fulfilled the conditions to be and was granted refugee status under the Danish Aliens Act Art. 7 (1).

The fact that the membership of a particular social group is not subject to specific repressive criminal provisions has no incidence on the granting of refugee status.

Granting someone a refugee status for fear of persecution based on belonging to a social group due to his sexual orientation, cannot be linked to the fact that his sexual orientation has, or not, been made public. Indeed, a social group is instituted by how society perceive those in the group.

An individual applying for asylum does not have, in order to avoid persecutions in his country, to hide his sexual orientation.

In order to prove the risk of persecution, there is no requirement that belonging to a social group based on sexual orientation must be prohibited by any criminal law in the country of origin of the applicant. In fact, this risk can be based on abusive common law provisions, or behaviours, whether they are supported, facilitated or merely tolerated by the country’s authorities.

The applicant was granted refugee status under the Danish Aliens Act Art. 7 (1) because of the threat of forced marriage in Afghanistan. The applicant belonged to the particular social group of “widows in risk of forced marriage”. The Afghan State is neither willing nor able to protect women against persecution in case of forced marriage. Internal protection was not available to the applicant.

This case dealt with the extent to which in the case of a child the prospect of discrimination could amount to a real risk of persecution sufficient to found a successful asylum claim in a situation where a comparably placed adult would not be at such a risk. 

The case concerned an application for judicial review of the decisions made on behalf of the Secretary of State to transfer the applicants to Malta, on the basis that such jurisdiction was the proper place for considering the applicants’ asylum claims. The applicants argued that such transfer would violate their rights under Article 18 of the Charter of the Fundamental Rights of the European Union (EU Charter) to have their asylum application determined within a reasonable time and on the basis of a fair procedure, as the Maltese asylum system had several shortcomings and contains procedures that are illusory or too slow. Dismissing the application, the Tribunal concluded that there was no evidence to support the argument that the applicants’ Article 18 rights would be violated if they were transferred to Malta. 

The High Court in this case focused on two questions: 1) whether the Refugee Appeals Tribunal’s (RAT) finding of a lack of a Convention nexus was valid, given the evidence before it, and 2) whether the RAT’s finding that the persecution faced by the applicant in the past does not amount to “compelling reasons” meriting a grant of refugee status was valid. The Court agreed with the Tribunal Member on the second question, finding that she had appropriately evaluated the applicant’s circumstances in light of the relevant guidelines, case law and evidence in rejecting the applicant’s claim for protection based on past persecution. However, the Court ultimately quashed the RAT’s decision in its findings on the first question, deducing that the RAT had failed to address all relevant aspects of the country of origin information that had been submitted by the applicant.

This case dealt with the issue of whether the Secretary of State’s certification of the asylum claims of the two independent applicants as “clearly unfounded” was flawed on public law grounds, and the important difference between a decision on refugee status itself and a decision on a claim being “clearly unfounded”.
 

There is a well-founded fear of persecution based on membership of a particular social group in the case of an applicant who, even though he is not gay, he is perceived as such by his community, his family and the authorities in his country of origin.