Belgium – Council for Alien Law Litigation, 19 May 2011, Nr. 61.832

Before the CALL, the applicant argued that the CGRS’ decision was essentially based on reasons relating to the credibility of her account, but that they had not considered the objective fears that the applicant could suffer in case of a return to Somalia or Djibouti.

The CALL examined the following two questions: (1) the question of the establishment of the facts relied on by the applicant, and (2) the question of the establishment of the applicant’s Somali nationality.

(1) The CALL noted that the applicant had produced certificates showing that she had already undergone a particularly grave form of mutilation, which should be seen as persecution in the sense of the 1951 Refugee Convention. On the basis of documentation submitted by the applicant, the CALL concluded that the risk that the applicant would have to endure further mutilation (infibulations) in case of a return to Djibouti (the country of her former habitual residence) was high, and that the risk did not appear to be lower in Somalia (the country which she claims to be a national of). The practice of infibulations after a first birth seemed to be widespread and the circumstance that the applicant had conceived a child outside marriage could be of a nature as to increase the risk of such mutilation. The applicant therefore had an objective reason to fear persecution. The applicant’s fear could be considered, according to the CGRS, as a fear of being persecuted on the basis of her belonging to a particular social group (the CGRS referred to the definition of social group and to the discussions of the Belgian legislator, in which the problem of FGM was explicitly mentioned).

(2) Regarding the question of the applicant’s nationality, the applicant repeated that the examination of an asylum application should be done vis-à-vis the country (or countries) of which the applicant has the nationality or, when the nationality of the applicant cannot be clearly established, the country of his/her former habitual residence (in analogy with stateless persons). In the case at hand, the applicant claimed to have Somali nationality, but that she had never lived in that country because she was born in Djibouti, where her parents had fled. The CALL accepted that it is impossible for persons of Somali origin to prove their nationality by submitting documents and that most often the examination of their nationality will be based solely on their statements. The applicant declared that she was not able to provide precise information regarding Somalia, as she was born in Djibouti and had never lived in Somalia. The CALL found that this explanation was plausible, but that it was not sufficient to demonstrate that the applicant was in fact Somali. This finding implied that the applicant’s nationality could not be established. In such a case, the CALL held, that the CGRS should have taken into account the country where the applicant had her habitual residence. However, the CGRS had not examined whether the applicant had access to protection from the Djibouti authorities. The CALL examined the question and found that this was not the case (and noted that the applicant would also not have access to protection from the Somali authorities).