Belgium – Council of State, 31 October 2010, Nr. 164.283

Country of Decision:
Country of Applicant:
Date of Decision:
31-10-2010
Citation:
Nr. 164.283
Additional Citation:
A.139.428/XIV-16.026 (Published in: TBP 2008 (2), p. 99
Court Name:
Council of State
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Headnote: 
This case confirmed that discriminatory treatment can amount to persecution in certain circumstances. The Council of State ruled that problems of discrimination cannot be automatically dismissed as insufficiently weighty to amount to persecution. Discrimination can have such severe consequences that it falls within the scope of the Refugee Convention.
Facts: 
The applicant, of Iranian nationality, had lodged an asylum application in Belgium on the basis of the political problems that she had experienced in Iran. She alleged that she was unjustly arrested in 1983 for having distributed a leaflet for an opposition party, after which she was sentenced to 2 years of imprisonment. Thereafter, she received a “social ban”, with the consequences that she could no longer work for a pubic authority, that she was unable to obtain a certificate of good conduct and morality, that she could not call on the assistance of a lawyer, that she was fired from her employment, and that she had to regularly report to the authorities for checks.

The Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application, on the basis that the applicant had never been politically active herself, that she had completed her prison sentence and, subsequently, had been able to function almost undisturbed for 17 years. Regarding the social ban and its consequences, the CGRS considered: “that it should be noted that the problems that you mention (…) fall under the label of discrimination and are therefore insufficiently weighty in order to be considered as a well-founded fear of persecution in the sense of the 1951 Refugee Convention.” The applicant lodged an appeal with the Council of State in order to obtain the suspension of the execution of this decision (old procedure).
Decision & Reasoning: 
Before the Council of State, the applicant argued that the CGRS had given a narrower meaning to the concept of “persecution” than was intended in the 1951 Refugee Convention. The CGRS described the measures that had been taken against the applicant as discrimination and “therefore insufficiently weighty to be considered as a well-founded fear of persecution”. The applicant, however, argued that such discriminatory measures violated her human rights to such an extent that collectively they could result in a well-founded fear of persecution, or even be considered as a form of persecution in themselves. The applicant had been prohibited from expressing her political opinion in any manner, on penalty of arrest or imprisonment, which implied a limitation of her freedom of expression and her freedom of assembly and association; her right to free movement had been limited and she had been discriminated against because of her political opinion. In other words, the applicant claimed that the discriminatory measures were of such weight that they amounted to persecution.

The Council of State considered: “that discriminatory measures are not necessarily insufficiently weighty to be considered as a well-founded fear of persecution in the sense of the 1951 Refugee Convention; that discrimination can only in exceptional circumstances be equated with persecution; that this will be, for example, the case when the discriminatory measures have consequences that cause serious harm to the person concerned, for example serous limitations to practicing a profession, to practicing one’s religion or to getting access to educational institutions that are otherwise open to everyone; that, when the discriminatory measures as such are not serious, they can nevertheless have as a consequence that the person concerned rightfully has a fear of persecution when those measures provoke a feeling of fear and insecurity regarding his/her own fate; that the question whether those discriminatory measures as such should be equated to persecution can only be answered in the light of all the circumstances of the situation.”

In the case at hand, the Council of State found that the CGRS’ conclusion that the applicant’s problems fell under the label “discrimination” and did not amount to persecution, was not satisfactory. The CGRS should have examined the severity of the problems prior to finding that they were insufficiently weighty in order to be considered as a basis for a well-founded fear of persecution. Problems of discrimination can also have such severe consequences that they fall under the scope of the 1951 Refugee Convention.
Outcome: 
The Council of State ordered the suspension of the execution of the CGRS’ decision.