Belgium – Council for Alien Law litigation, 20 October 2010, Nr. 49.821

Country of Decision:
Country of Applicant:
Date of Decision:
20-10-2010
Citation:
Nr. 49.821
Additional Citation:
Published in: Rev. dr. étr., 2010, nr. 160, pp. 501-505
Court Name:
Council for Alien Law litigation
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Headnote: 

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.

Facts: 

The applicant was a victim of forced prostitution in Macedonia and suffered serious abuse at the hands of the perpetrators. She managed to escape to Belgium and applied for asylum. Her application was refused on the basis of a number of improbabilities in her account; further it was not established that the applicant could not obtain a reasonable degree of protection from the Macedonian authorities against acts committed by perpetrators within the prostitution network. The applicant filed an appeal against this decision.

Decision & Reasoning: 
The CALL did not agree with the findings from the CGRS on the improbabilities in the applicant’s account.

The CALL then went on to consider risk in light of the applicant’s account and held that the facts were sufficiently serious by their nature and by their repetitive character to constitute persecution. In its reasoning the CALL referred to Art. 57/7bis of the Alien Act, which is a transposition of Art 4.4 of the Qualification Directive (past persecution or serious harm). The CALL concluded that  the abuse which the applicant was subjected to should be considered as a serious indication of the applicant’s well-founded fear.

The CALL subsequently considered the grounds for persecution and commenced by reminding the court that the concept of “particular social group” has evolved enormously through  case law in recent years. Referring to cases of the Canadian Federal Court and the UK House of Lords, the CALL indicated that a “particular social group” can now also be defined on the basis of the existence of an innate or unchangeable characteristic, such as gender. The CALL then considered that this concept of “particular social group” is “to a certain extent” reflected in Art 10(d) of the Qualification Directive.

The CALL noted that Belgian law did not entirely transpose this article of the Directive (see art. 48/3, §4 Alien Law). However, the CALL considered that the definition of “particular social group” under Belgian law was non-exhaustive and that national law should not be interpreted as restricting the Directive. On this basis the CALL decided that “in certain societies, persons of the same sex, or certain categories of persons of the same sex, can be considered as forming a particular social group”. In the present case the CALL found that the applicant had a fear of being persecuted on the basis of her membership of the social group of women.

The CALL subsequently examined whether the applicant could reasonably be expected to obtain effective protection from the Macedonian authorities, the actors of persecution in this case being private. Having considered the factual evidence (e.g. links between the prostitution network and the authorities), the CALL decided that this was not the case. It is interesting to note, however, that in its reasoning the CALL reiterated that NGOs cannot be considered as actors of protection (to the extent that they do not control the state or an important part thereof).
 
Outcome: 

The decision of the CGRS was overturned and the applicant was granted refugee status.

Observations/Comments: 
This judgment can be found in Revue Du Droit Des Estrangers - 2010 - No 160 page 501.