France - Council of State, 27 July 2012, n° 349824, M.B.
Country of Decision:
Country of Applicant:
Date of Decision:
27-07-2012
Citation:
CE, 27 juillet 2012, n° 349824, M.B.
Court Name:
Council of State (CE)
Keywords:
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
International Law
International Law > 1951 Refugee Convention
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
International Law
International Law > 1951 Refugee Convention
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
National / Other Legislative Provisions:
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)
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Headnote:
A social group is not formed by those of whom it consists, or even by the objective existence of characteristics ascribed to them, but by the way in which surrounding society or institutions regard them.
Facts:
The Applicant, a homosexual man from the DRC, was granted subsidiary protection but refused refugee status by the CNDA (National Asylum Court). The CNDA found, on the one hand, that he had failed to establish that his sexual orientation had been openly expressed and, on the other, that homosexuality is not a criminal offence in the DRC.
The Applicant applied to the Council of State to quash the CNDA’s decision and to recognise his refugee status.
Decision & Reasoning:
The Council of State first reiterated the provisions of Article 10, section 1 d) of the Qualification Directive and held that a social group “consists of persons who share an innate charactistic, a common background or a characteristic so that is so fundamental to identity and conscience that they cannot be asked to renounce it, and a distinct identity perceived as being different by surrounding society or institutions” and that “according to the prevailing circumstances in a country, persons may, due to their sexual orientation, constitute a social group”.
The Council of State found that a social group is not formed by those of whom it consists, or even by the objective existence of characteristics ascribed to them, but by the way in which surrounding society or institutions regard them; it held that the grant of refugee status because of persecution arising from membership of a social group based on shared sexual orientation should not be dependent on a public expression of that sexual orientation by the person seeking the refugee status.
The Council of State added that the fact that membership of the social group was not specifically a criminal offence did not have any bearing on assessing the actual existence of the persecution due to that membership. Persecution may stem from ordinary legal provisions being unreasonably applied to that social group, or from behaviour emanating from the authorities, being encouraged by those authorities or even simply being tolerated by them.
The Council of State concluded that theCNDA had made a twofold mistake of law.
Outcome:
The decision of the CNDA was quashed. The case was referred back to the CNDA.
Observations/Comments:
In a decision of the same date (CE, 27 July 2012, n°342552) concerning a female Mongolian homosexual Applicant, the Council of State adopted the same definition of a social group (see summary above), adding that assessment of the conditions in the country of origin “must, furthermore, be sufficiently precise and be able to take account, where appropriate, of any specificities in the way various elements of that group are regarded”.
