Case summaries
An Egyptian transgender woman, who first underwent gender reassignment surgery and hormone treatment in Austria, was recognised as a refugee as it was accepted that there were problems with the police, a refusal to issue her a passport using her new personal data and social issues of an intensity relevant to asylum matters.
According to the Qualification Directive, forced marriage, along with domestic violence and issues of faith, can be considered as persecution on a cumulative basis having regard to the situation in the country of origin.
An unmarried woman with a “Western“ lifestyle, who is not religious and has no financial means, is at risk of gender based persecution by non-State actors in case of return to Iraq (continuation of the court’s case law, compare decision of 26 June 2007. A 6 K 394/07)
A group shall be considered as a particular social group where, in particular, members of that group 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, and membership of that group is established where the attitude of an applicant is considered by the whole or a part of the society of his/her country of origin as an infringement of the customs and laws in force, and for this reason he/she is likely to face persecution against which the authorities refuse or are unable to protect him/her.
The Migration Board accepted the applicant and her children were in need of international protection as refugees in relation to Senegal but claimed that they could obtain protection in Nigeria (considered a safe third country). The Migration Court upheld the applicant’s appeal stating that once a case has been examined in substance in relation to a country of origin and protection needs ascertained it is not possible subsequently to refuse protection by referring to a safe third country. Cases concerning safe third countries must be dismissed in accordance with Art 25.2(c) of the Asylum Procedures Directive which is transposed into Swedish law by the Aliens Act (2005:716) Chapter 5 Section 1 (b).
This case concerned the concept of “particular social group." The CALL held that persons of the same sex can, in certain societies, be considered as a “particular social group.” The applicant, a victim of forced prostitution, was granted international protection on the basis of her belonging to the social group of women.
Although gender based persecution is not expressly mentioned among the reasons for recognising refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.
Although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.
The applicant claimed asylum in 2006 (along with her children) alleging a well founded fear of persecution on the grounds of political opinion. The application was refused in the initial procedure and on appeal. She returned to Colombia and two years later, returned to Spain and reapplied for asylum and was again refused. She lodged an appeal before the Supreme Court and was granted subsidiary protection.
The Helsinki Administrative Court found that a female minor from a town near Mogadishu was in need of subsidiary protection. The Court held that to return home the applicant would have to travel via Mogadishu which would place her at serious and personal risk due to the nature of the armed conflict.