Spain - High National Court, 13 January 2009, 1528/2007

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High National Court
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The Ministry of Interior rejected the asylum claim of an Algerian woman who requested protection based on gender persecution by a non-state agent. The High National Court, on appeal, ruled that gender is considered as a “particular social group” and that it is not necessary that the persecution is carried out by state actors but also by non-state actors under certain circumstances. The applicant was granted Refugee status.


The case concerned an appeal against a decision of the Ministry of Interior to refuse refugee status to an applicant from Algeria who claimed asylum on the grounds of gender based persecution, alleging physical and mental abuse inflicted on her, and her children, by her husband. A residence permit was granted on humanitarian grounds; however, the decision to deny refugee status was appealed to the National High Court.

The State Attorney, challenging the appeal, claimed the facts presented by the applicant did not amount to persecution within the meaning of Art 1A of the 1951 Refugee Convention. The State Attorney argued that the persecution occurred in the past and that the applicant had no current need for protection, and that the circumstances in the country of origin had changed. Consequently, the applicant failed to establish past persecution and a well found fear of persecution on return. 
Decision & Reasoning: 
The National High Court presented the final judgement on the 13th January 2009, ruling that:
Sexually violent acts, domestic and family violence, that cause deep physical and mental harm constitute grounds upon which persecution can be claimed.
Gender based persecution is included in the Convention ground ‘membership of a particular social group’ because both “sex” and “women” can be considered social groups. Persecution can be carried out by “both state and non-state actors.” Acts of persecution are not limited to discriminatory state action but can occur when non state actors commit serious acts of discrimination and other offences, and these acts are deliberately tolerated by state authorities or state authorities refuse to provide effective protection, or are unable to do so.
The Algerian state did not guarantee the rights of the applicant or provide protection against serious abuse. Therefore, the discrimination suffered due to the lack of protection can cause serious harm and constitute persecution.

Once the applicant established past physical and mental abuse, and that it may occur in the future, then a well-founded fear of persecution and a real risk of suffering inhuman and degrading treatment (according to Art 3 of the ECHR and its jurisprudence) are established.

The appeal was successful. The National High Court overturned the decision of the Ministry of Interior and granted refugee status.