Case summaries
The case concerned an appeal lodged before the Supreme Court against a decision of the High National Court to reject a claim for refugee status based on membership of a particular social group (this particular group was determined by economic status).
The case concerned a woman who feared return to Sierra Leone because she would face gender specific persecution in the form of Female Genital Mutilation (FGM). The issue was whether she was entitled to recognition as a refugee because she feared persecution on account of her membership of a particular social group. Her appeal was allowed on the basis that women in Sierra Leone and, alternatively, uninitiated women who had not been subjected to FGM in Sierra Leone, were particular social groups.
The case concerned the issue of whether ‘family’ constitutes a particular social group. The applicant was recognised as a refugee on the basis of her well founded fear of persecution as a member of her husband’s family.
The sexual orientation of the Applicant for asylum may, depending on circumstances and with regard to the situation in the country of origin, be considered a sign of his membership of a particular social group. The threat of injury to the Applicant for asylum as a result of actions causing psychological pressure may not be as serious as injuries that result in threats to life or freedom, but must be at least of a comparable type.
This case concerned the application of Art 10.1 (d) of the Qualification Directive, as applied to lesbians from Iran. It was found that the "particular social group", described as homosexual (lesbian) women, has a distinct identity in Iran, because they are perceived as being different by the surrounding society (Art. 10.1 (d) (1) of the Qualification Directive).
Further, that there is a high likelihood that a homosexual relationship between women would be persecuted when detected, because it constitutes a breach of a cultural norm, even worse than among homosexual (gay) men.
Persecution by non-State actors according to Section 60 (1) sentence 4 (c) of the Residence Act (similar to Art 6 (c) of the Qualification Directive) is not established if the group of actors is small and only consists of a limited number of private persons. In this case, the "dangerousness" of the persecution is not comparable to those cases where the persecution stems from the State or State-like actors according to Section 60 (1) sentence 4 (a) and (b) of the Residence Act (similar to Art. 6 (a) and (b) of the Qualification Directive) .
A family or an extended group of relatives do not constitute a "social group" in the context of refugee protection. A family is not clearly perceived as a definable group with its own "group" identity. Such a clear definition of a family or clan could only be established if membership of the family was considered of high importance and the family or clan had a distinct identity.
Women who want to escape from a forced marriage, whose attitude is perceived by whole or part of the society of their country of origin as an infringement of the applicable customs and laws, and who therefore face a risk of persecution against which the authorities are unable or unwilling to provide protection, must be considered as members of a social group in the meaning of Article 1A(2) of the 1951 Refugee Convention; when these conditions are not fulfilled, in particular when their behavior is not perceived as an infringement of the social order, these women nevertheless face the risk of suffering inhuman or degrading treatment and should therefore be granted subsidiary protection.
In the conditions which currently prevail in some rural areas in Eastern Turkey, the attitude of women of Kurdish origin who want to escape from a forced marriage is perceived by society and the authorities as an infringement of their customs, these women are therefore subjected to persecution committed with the assent of the population. Women who refuse forced marriage in these areas form a group whose members, by reasons of common characteristics which define them in the eyes of Turkish society, are likely to face persecution against which the authorities are unable to provide protection.
The judgment defined a particular social group as a group of persons that objectively share common characteristics or who at least are perceived to do so by society. This characteristic is often of an innate and unchangeable nature or is otherwise fundamental to human identity, conscience or to the exercise of those particular persons’ human rights. This characteristic cannot be constituted by the risk of persecution itself.
Refusal to perform compulsory basic military service cannot be considered as a reason for granting asylum, particularly if such a refusal is not connected with manifested political or religious beliefs.