France - CNDA, 23 December 2010, Miss D., n°09011388

Country of Decision:
Country of Applicant:
Date of Decision:
23-12-2010
Citation:
Cour nationale du droit d’asile, 23 décembre 2010, Mlle D., n°09011388
Court Name:
National Asylum Court/Cour nationale du droit d’asile (CNDA)
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Headnote: 

A group shall be considered as a particular social group where, in particular, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society, and membership of that group is established where the attitude of an applicant is considered by the whole or a part of the society of his/her country of origin as an infringement of the customs and laws in force, and for this reason he/she is likely to face persecution against which the authorities refuse or are unable to protect him/her.

Facts: 

Miss D., a Guinean national, refused to undergo FGM in her village against the will of her parents. She claimed that she had been involved in anti-governmental political activities and that she was subjected to physical abuse for this reason. Her parents sent her to France by force for a pre-arranged marriage with a Guinean man holding a residence permit. Once in France, she was subjected to violence and confinement by this man, against whom she lodged a complaint and who was ordered not to approach her. The French Office for the Protection of Refugees and Stateless Persons (Ofpra) rejected her asylum application. She appealed before the National Asylum Court/Cour nationale du droit d’asile (CNDA).

Decision & Reasoning: 

The CNDA considered that the fact that the applicant was forced by her parents to come to France to be married against her will was established. The Court found that she cannot return to her country, where she had a well-founded fear, because of the predictable violent reaction of her parents who organised this marriage.

The CNDA considered that it stemed from the interpretation of Article 1A2 of the 1951 Refugee Convention that “a group shall be considered as a particular social group where, in particular, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society, and membership of that group is established where the attitude of a claimant is considered by the whole or a part of the society of his/her country of origin as an infringement of the customs and laws in force, and for this reason he/she is likely to face persecution against which the authorities refuse or are unable to protect him/her”.

In the present case, the CNDA considered that the case file was not sufficient to conclude that the applicant’s anti-governmental political activities, which only started once she was in France and which she manifested during this forced marriage, could amount to such an infringement that she could be seen as a member of a particular social group. The CNDA therefore found that the applicant cannot be recognised as a refugee.

However, the CNDA considered that by lodging a complaint and by refusing the settlement made by her parents, she deliberately opposed their will and that she would face, if returned to her country of origin, acts amounting to inhuman and degrading treatment from her relatives, without being able to request effectively the intervention of the authorities due to the private and domestic nature of the case.

The CNDA concluded that the applicant should be granted subsidiary protection.

Outcome: 

The applicant was granted subsidiary protection.

Observations/Comments: 

In this decision, the CNDA gives a more detailed definition of a particular social group than in a previous decision taken by its Plenary Session in another case of forced marriage ( see CRR, SR, 29/07/2005, Mlle T., n°519803 ; also summarised in this database).

In this definition, the CNDA firstly recalls the provisions of Article 10.1 d) of the Qualification Directive according to which “a group shall be considered to form a particular social group where in particular members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society”.

The CNDA, however, added an element relating to the external infringing behaviour of the person concerned which is, according to the Court, the basis of the distinction between membership of a particular social group in the meaning of Article 1A2 of the 1951 Refugee Convention and subsidiary protection.

As for many other CNDA decisions relative in particular to LGB applicants (a certain number of which are also summarised in this database, see in particular CNDA, 23 December 2010, Mr. K., n°08014099), the CNDA requires that applicants have manifested their characteristic or identity by their external behaviour in order to be members of a particular social group. In some decisions, the Court considers that, as long as the individual hides this characteristic or identity, he/she is not perceived as such and therefore cannot be a member of the social group. This seems to stem from an erroneous interpretation of Article 10.1 d) of the Qualification Directive which states that a particular social group has a distinct identity in the relevant country because that group is perceived as being different by the surrounding society. The question is about whether the social group is perceived to be different by the surrounding society instead of whether the individual him/herself (who manifests or not his/her characteristic or identity) is perceived to be different. (For a more thorough analysis of this issue, see Fleeing Homophobia – Asylum claims related to sexual orientation and gender identity in Europe, report from COC Netherlands and VUA, September 2011).

Furthermore, the definition of the membership of a particular social group which is given in the present CNDA decision includes persecution (“for this reason [his/her attitude], the claimant is likely to face persecution”). Yet, according to UNHCR, “a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights” (UNHCR Guidelines on membership of a particular social group, HCR/GIP/02/02, 7 May 2002).