France - CNDA, 29 April 2011, Miss E., n°10012810

Country of Decision:
Country of Applicant:
Date of Decision:
29-04-2011
Citation:
Cour nationale du droit d’asile, 29 avril 2011, Mlle E., n°10012810
Court Name:
National Asylum Court/Cour nationale du droit d’asile (CNDA)
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law) - Art L.712-1
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Headnote: 

Prostitutes who come from the State of Edo, and who are both victims of human trafficking and anxious to extricate themselves actively from these networks, form a group whose members are, by reason of these two common characteristics which define them, likely to be subjected to persecution within the meaning of Article 1A(2) of the 1951 Refugee Convention, without being able to avail themselves of the protection of the Nigerian authorities. They are members of a particular social group.

Facts: 

Miss E. comes from Benin City, located in the State of Edo, Nigeria. In her country of origin, she was approached by a human trafficking network which offered her a job in Europe. Once in France, she was forced to prostitute herself. She gave the names of the managers of the network to the police but was only able to give first names. Her asylum application was rejected by the French Office for the Protection of Refugees and Stateless Persons (Ofpra). On appeal, she requested the National Asylum Court/Cour nationale du droit d’asile (CNDA) to grant her refugee status.

Decision & Reasoning: 

Relying on numerous sources of COI, the CNDA stated that many young women who are recruited in the State of Edo, and who are exploited by force by human trafficking networks, are subjected to a form of violence for reason of their gender which shall be considered as persecution. In case of return to their country, they face serious reprisals by traffickers, as well as real risks of being subjected to human trafficking again, or being ostracised by their family or community or seriously discriminated against.

Quoting the laws from the State of Edo relative to prostitution and procuring, and accepting the absence of effective criminal proceedings there, the CNDA considered that the systematic character of the absence of protection in this State must be seen not solely as a risk of inhuman and degrading treatment in the meaning of Article L.712-1 Ceseda [on subsidiary protection].

The CNDA considered that prostitutes who come from the State of Edo and who are both victims of human trafficking and anxious to extricate themselves actively from these networks, form a group whose members are, by reason of these two common characteristics which define them, likely to be subjected to persecution in the meaning of Article 1A(2) of the 1951 Refugee Convention, without being able to avail themselves of the protection of the Nigerian authorities, and notwithstanding the fact that this State ratified the Palermo Protocol in 2001 and promulgated a law against human trafficking in 2003.

The CNDA concluded that Miss E., who established that she comes from the State of Edo in Nigeria and that she was eager to break the links with the above mentioned human trafficking network, must be considered as a member of a particular social group within the meaning of Article 1A(2) of the 1951 Refugee Convention and as having a well-founded fear of being persecuted in case of return to her country of origin. She can therefore be recognised as a refugee.

Outcome: 

The applicant was recognised as a refugee.

Subsequent Proceedings : 

This decision was subsequently quashed by the Council of State in a decision No. 350661 of 25 July 2013 - click here for summary and judgment. The Council of State's decision was sent back to the CNDA who found that victims of trafficking from the Edo State do, indeed, share a common background and distinct identity which falls within the definition of a particular social group. The applicant was given refugee status - click here for summary and judgment. 

Observations/Comments: 

This recent CNDA decision shows an interesting example of a reasoned decision which relies on several sources of COI – which is still relatively uncommon in the practice of the Court .

Its structure might however be questioned, in particular the relevance of  examining firstly the risk of inhuman and degrading treatment within the meaning of subsidiary protection before assessing the ground of membership of a particular social group in the meaning of the 1951 Refugee Convention.

See also CNDA, 29 juillet 2011, Mlle O., n°10020534

Other sources cited: 

Global Report on Trafficking in Persons, UNODC, 2009

Article "Sexual harassment: The Experience of Out-of-School Teenagers in Benin City, Nigeria"», African Journal of Reproductive Health, vol. 9, 3 December 2005

Chapter 21 of the 1990 Criminal Code

Laws from the State of Edo

Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (also referred as the ”Palermo Protocol”) UN 2000