France - A.B. v Council of State, 8 February 2017, No. 396695

Country of Decision:
Country of Applicant:
Date of Decision:
08-02-2017
Court Name:
Council of State
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention
National / Other Legislative Provisions:
France - Entry and Stay of Foreigners and Asylum Law Code
France - Law: n° 91-647 of 10 July 1991
France - Administrative Justice Code
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Headnote: 

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.

Facts: 

The applicant filed an appeal asking the Council of State to annul decision N°15009118 issued by the National Court of Asylum (‘CNDA’). This decision rejected the applicant’s appeal against the dismissal of his asylum claim by the French Office for the Protection of Refugees and Stateless Persons on 28 January 2015.

Moreover, he asks the Council of State to decide his case and to grant him refugee status. He also demands the State to be fined 2000€ under article L.761-1 of the Administrative Justice Code.

Decision & Reasoning: 

First, the Council of State looks at article 1, paragraph A, 2° of the Geneva Convention of 28 July 1951 and the New York protocol of 31 January 1967, to show that an individual can be considered as a refugee, if, because he belongs to a certain social group, he fears persecution.

It then defines the notion of social group as people sharing their own identity and which are perceived as different by society or by established institutions. Thus, it derives from conditions specific to a country, that individuals constitute a social group because of their sexual orientation. It must be assessed on a case-by-case basis, depending on each country, based on how the individuals of the alleged social group are seen by society or institutions.  

The Council of State then adds that 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. Moreover, the Council of State considers that an individual applying for asylum does not have, in order to avoid persecutions in his country, to hide his sexual orientation. The Council of State then adds that, 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.

According to the State Council, the CNDA has the responsibility to assess those elements in light of the parties’ arguments and the applicant’s narrative. The Court cannot ask for the applicant to provide evidence of his sexual orientation, but it can reject an appeal if it considers that the applicant’s plea is not substantiated enough.

Finally, the Council of State found that the CNDA had erred in law. After determining that the applicant’s sexual orientation was established, the Court nevertheless rejected the appeal. It considered that nothing in the file or in the applicant’s declaration was evidencing the alleged facts or fears.

Nonetheless, according to the Council, the CNDA did not assess if the persecution the applicant would be exposed to, was real, nor did it enquire as to whether being homosexual in the Ivory Coast amounted to belonging to a social group. 

Outcome: 

Application granted because the applicant is entitled to require the annulment of the 31 August 2015 decision. 

The case is sent back to the CNDA for re-examination. 

Subsequent Proceedings : 

Three decisions with similar reasoning were issued the same day by the Council of State. N° 379378, N° 397745, N° 395821

Observations/Comments: 

This case summary was written by Laure Joly, LLM student at Queen Mary University, London.