Those seeking asylum and protection do not leave their country voluntarily for economic, family or educational reasons. Refugee status is granted to foreigners who do not meet the requirements for legal migration (regular passport, residence visa, work permit). This status is obtained by people who flee their country of origin because they fear persecution, violation of fundamental human rights or threat to their life and security.
According to the Asylum and Refugee Act, refugee status in the Republic of Bulgaria is granted to a foreigner who, due to a well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group, is outside his/her country of origin and for these reasons is unable or unwilling to avail himself/herself of the protection of that country or to return to it.
In this article we will present an analysis of two fundamental decisions of the Court of Justice of the European Union in the field of refugee law. The judgments of the European Court of Justice address the question of the content of the notion of 'particular social group' as a ground that may justify the recognition of refugee status.
Court Decision (Fourth Chamber) of 7 November 2013 in Joined Cases C-199/12 to C-201/12 - X and Y and Z
The subject-matter of the proceedings are references for a preliminary ruling from the Raad van State (Netherlands) to the Court of Justice of the European Union on the interpretation of Article 9(1)(a) of the Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
In Cases C-199/12 and C-200/12, the references concern a dispute between the Minister for Immigration and Asylum of the Netherlands and persons X and Y, who are nationals of Sierra Leone and Uganda, and in Case C-201/12, a dispute between Z, a national of Senegal, and the same Minister concerning the latter's rejection of their applications for temporary residence (asylum) in the Netherlands.
Before proceeding to discuss the substantive legal issues, we should outline the specific factual situation in the main proceedings.
X, Y and Z apply for temporary residence (asylum) in the Netherlands, claiming that they should be granted refugee status because they have been subjected to violence and reprisals by the national authorities in their countries of origin on account of their homosexuality, which has caused them a well-founded fear of persecution if they return to their home countries.
It emerges that homosexuality is punishable under the national legislation of all three countries (Sierra Leone, Uganda and Senegal) in the countries of origin of the nationals seeking international protection.
The Secretary of State for Immigration and Asylum refuses to grant X, Y and Z temporary leave to remain (asylum) on the grounds that they have failed to establish that their fear of persecution on the grounds of their membership of a particular social group is well-founded.
The victims appealed against the refusals to the national court in the Netherlands, which upheld X's appeal and Y's claim, stating that the competent administrative authority had not given sufficient reasons as to whether the criminality of homosexual acts in the applicants' countries of origin could give rise to a well-founded fear of persecution on account of their homosexuality.
An appeal follows against the decisions of the national court annulling the Minister's refusals, leading to a stay of proceedings and referral of preliminary questions.
The first question posed seeks to determine whether Article 10(1)(d) of the Directive should be interpreted as meaning that it is possible to assume that homosexual persons could form a particular social group when assessing the grounds for persecution set out in the provision of Article 10 of Directive 2011/95 of the European Parliament and of the Council, also known as the "Qualification" Directive. In order to answer the question, the ECJ stresses that the citizen concerned must face a well-founded fear of persecution directed against him personally, for at least one of five reasonslisted in the Directive and in the 1951 Geneva Convention, one of which is its "belonging to a particular social group".
As the CJEU points out, inclusion of a group within the scope of the term "particular social group" requires the existence of two cumulatively present prerequisites. On the one hand, the members of the group need to share an innate characteristic or common historythat is not subject to change, or share a characteristic or belief so essential to identity or consciousness that the person should not be required to renounce it. On the other hand, that group must have own identity in that country because it is seen as different from the surrounding society.
The cumulative approach means that both of the above criteria need to be met simultaneously, i.e. to have 'common characteristics' and 'own identity'. Put another way, it is not enough to establish that a group shares certain characteristics, history or beliefs. At the level of the group, this must also be visible to other individuals in the group so that it is seen as distinct. This approach has been confirmed by the judgment of the CJEU in the case at hand.
In its reasoning, the CJEU stated that "as regards the first of these conditions, it is undisputed that a person's sexual orientation constitutes a characteristic so essential to his identity that he should not be required to renounce it". It explains that this interpretation is confirmed by the second subparagraph of Article 10(1)(d) of the Directive, which provides that, depending on the conditions prevailing in the country of origin, a specific social group may also be a group whose members have a particular sexual orientation as a common characteristic. However, it follows from Article 10(2) of the Directive that, when Member States are assessing whether an applicant's fear of persecution is well-founded, the fact that he or she actually possesses the characteristic of belonging to a particular social group which is the basis of the persecution is irrelevant, provided that according to the subject of the persecution he possesses this characteristic.
In his conclusion in the present cases, the Advocate General considers that the answer to the preliminary question referred should be in the affirmative. In his view, the European Union legislature expressly referred in the directive to membership of a social group on the ground of sexual orientation, since, at the time when the Commission submitted its proposal, it was beginning to be accepted that it was possible for persons to be forced to flee persecution and to seek international protection on that ground, even though such a ground was not expressly included in the Geneva Convention.
In view of the reasons set out above, the CJEU concludes, that the existence of criminal legislation such as that at issue in each of the main proceedings, which specifically targets homosexual persons, makes it possible to establish that those persons constitute a distinct group, seen as different from the surrounding society.
With the other essential question referred to the CJEU, the referring court seeks a preliminary ruling as to whether Article 9(1)(a) in conjunction with Article 9(2)(c) of the Directive must be interpreted as meaning that the very circumstance of the criminality of homosexual acts with imprisonment constitutes an act of persecution. Here, the ECJ specifies that the acts in question must be sufficiently serious in their nature or repetitive in their character to constitute a serious violation of fundamental human rights, in particular absolute rights for which there is no possibility of derogation under Article 15(2) ECHR. In the light of this circumstance, the ECJ finds that in order for a violation of fundamental rights to qualify as persecution must reach a certain degree of severity. Therefore, not every violation of the fundamental rights of a homosexual asylum seeker will necessarily reach this level of gravity.
Analyzing the nature of the right to respect for private and family life, proclaimed in Article 8 ECHR, to which Article 7 of the Charter corresponds, the ECJ recalls that this fundamental human right is not an absolute right and may be subject to restrictions.
Taking this circumstance into account, the CJEU held, that the mere existence of legislation criminalizing homosexual acts could not be considered an act, which affects the applicant so substantially as to rise to the level of seriousness necessary for it to be regarded as constituting persecution within the meaning of Article 9(1) of the Directive.
However, it points out that legislation which provides for a custodial sentence to punish such acts may itself be perceived as an act of persecution, if it actually applies in the country of origin which has adopted such legislation. In this respect, the ECJ points out that where an asylum seeker refers in his application to legislation existing in his country which criminalises homosexual acts, it is for the national authorities to determine whether the penalty of deprivation of liberty is actually applied in the applicant's country of origin.
In the light of these considerations, the CJEU concludes that the mere criminalization of homosexual acts does not constitute an act of persecution per se, but a penalty of imprisonment which punishes homosexual acts and which is actually applied in the country of origin which has adopted such legislation, should be considered a disproportionate or discriminatory punishment and therefore constitutes an act of persecution.
Court Decision (Grand Chamber) of 16 January 2024 in Case C-621/21 - WS
The subject-matter of the proceedings is a reference for a preliminary ruling from the Administrative Court of Sofia-City (Bulgaria) to the Court of Justice of the European Union (CJEU) on the interpretation of recital 17, Article 6(c), Article 9(2)(a) and (f), Article 9(3), Article 10(1)(d) and Article 15(a) and (b) of the EC Treaty. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and for the content of the protection granted. The request was made in the context of a dispute between WS and an interviewing authority of the State Agency for Refugees under the Council of Ministers, which concerned the refusal to open an international protection procedure on a subsequent application by WS.
WS is a Turkish national who applied for international protection and was accepted by the Bulgarian authorities. During the interviews, she stated that at the age of 16 she entered into a forced marriage, during which she was subjected to acts of domestic violence and threats of murder by her husband. In September 2016, WS fled the family home, and in September 2018, she formally divorced her first husband over his objections. For these reasons, she claims that she fears being killed by her family if she returns to her country of origin.
The President of the DAB rejected WS's application for international protection, holding that the reasons she had given for leaving Turkey were irrelevant to the grant of such status as they could not be linked to any of the relevant grounds of persecution. WS's appeal against the administrative authority's refusal was rejected by a decision of 15 October 2020 of the Sofia City Administrative Court, which was upheld on 9 March 2021 by the Supreme Administrative Court and became final.
On 13 April 2021, WS made a further application for international protection, this time invoking legitimate fears of persecution by non-state actors because of their membership of a "particular social group" - that of women victims of domestic violence, and of women potential victims of "honour crimes". In her application, the applicant alleged that the Turkish State was unable to protect her from these non-State actors and that her return to Turkey would expose her to the risk of a "crime of honour" or forced marriage and, accordingly, to the risk of a violation of Articles 2 and 3 ECHR.
Decision of 5 May 2021. The DAB refused to reopen the international protection procedure on WS's subsequent application on the ground that she had not invoked any new circumstances of material relevance to her personal situation or to her country of origin.
The referring court observes that the Court has never ruled on the issues of 'gender-based violence against women in the form of domestic violence and threats to honour as grounds for international protection'. In that circumstance, the question for the national court whether biological or social sex is sufficient to establish that a woman who is the victim of such violence belongs to a particular social group as a motive for persecution within the meaning of Article 10(1)(d) of Directive 2011/95 and whether acts of persecution, including domestic violence, can be determinative of the visibility of the group in society.
In this situation, the ACLJ decides to address several preliminary questions, of particular relevance for the purposes of this paper in the case of gender-based violence in the form of domestic violence alleged by the applicant for protection, is biological or social sex a sufficient ground for determining membership of a particular social group under Art. 1, б. "d" of Directive 2011/95 or whether an additional distinguishing feature of the group should be established.
In the spirit of its constant case-law, the ECJ also in this judgment analyses the content of the motif "belonging to a particular social group" stating in its reasoning that a group is considered a "particular social group" when the two cumulative conditions we have already discussed above are met.
In assessing whether the conditions for the identification of a 'particular social group' were met in the present case, the ECJ found that, as regards to the first condition namely, the sharing of at least one of the three distinctive features under the first subparagraph of Article 10(1)(d) of Directive 2011/95, it should be stated that the fact that a person is female is an innate characteristic and is therefore sufficient to satisfy the condition.
When it comes to the second, condition, which must be present in order to establish membership of a "particular social group, linked to the group's 'own identity' in the country of origin, the ECJ noted that women may be viewed differently from the surrounding society and be recognised as having their own identity in that society based in particular on social, moral or legal norms that apply in their country of origin. This in turn means that the Member State concerned must determine which surrounding society is relevant in order to assess the existence of this social group.
In paragraph 79 of his Opinion, the Advocate General in the case concludes that women who refuse to enter into forced marriagewhere such a practice might be considered a social norm in their society, or violate such a norm by ending that marriage, can be considered as belonging to a social group with its own identity in their country of originif, because of such behaviour, they are stigmatised or exposed to the disapproval of the surrounding society, leading to their social exclusion and acts of violence.
With these conclusions, the CJEU, in its fundamental judgment on the right of victims of domestic violence to international protection, concludes, that women in their entirety may be considered to belong to a 'particular social group' within the meaning of Article 10(1)(d) of Directive 2011/95 where it has been established that, because of their gender, they are exposed to physical or psychological violence, including sexual and domestic violence, in their country of origin.
This article is for informational purposes only and does not constitute a legal opinion or legal advice. If you require any assistance or further information in relation to the matters discussed, you may contact us at. + 359 897 977 338 / + 359 876 267 112 or through any of the other contact channels of Vatev & Partners Law Office.