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A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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ACKNOWLEDGMENTS
I want to thank Distinguished Chair of Immigration and Human Rights Law at New York Law School Prof.
Lenni Benson, without the support of whom this project would have been impossible.; also, the Queer
Immigrant Justice Project at UnLocal for the trust and support. Finally, for the valuable insights in writing
this report I want to thank:
Jeffrey Chase
Paul O'Dwyer
Heather Axford
Noemi Masliah
Claire Thomas
Christa Stewart
Michael Younker (Queer Immigrant Justice Project at UnLocal)
Gregory B. Pietrzak
H. Raymond Fasano
Lee Koch
Christine Lin (Center for Gender and Refugee Studies, UC Hastings)
Carlos Valenzuela
Arthur Leonard
Gabriel Videla
Noah Habeeb
Noemi Mesliah
Bridget Crawford (Immigration Equality)
Conor Cory (Immigration Equality)
Sebastian Maguire
Ari Shaw (Williams Institute, UCLA)
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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Abstract........................................................................................................................................................................... 4
Introduction-methodology of the report ....................................................................................................................... 4
1. Synopsis of UNHCR Guidelines ........................................................................................................................... 5
1.1. Refugee definition ...................................................................................................................................... 5
1.2. Particular social group according to the UNHCR guidelines ....................................................................... 5
1.3. Discrimination vs persecution .................................................................................................................... 9
1.4. Burden and standard of proof .................................................................................................................... 9
2. Human rights law on gender diversity, depathologization, and the Yogyakarta principles ............................. 11
2.1. Human rights law on trans lives ............................................................................................................... 11
2.2. The Yogyakarta Principles ......................................................................................................................... 13
PART A: EU .................................................................................................................................................................... 15
3. Common European Asylum System and the Qualification Directives .............................................................. 15
4. Court of Justice of European Union and European Court of Human Rights related jurisprudence on asylum
AND transgender rights ............................................................................................................................................ 35
4.1. Sexual orientation and asylum ................................................................................................................. 35
4.2. Gender identity in CJEU law ..................................................................................................................... 37
5. Where EU falls short on gender identity/expression asylum jurisprudence .................................................... 38
PART B: US .................................................................................................................................................................... 41
6. The US asylum adjudication system ................................................................................................................. 41
7. Supreme Court and BIA precedential case law on asylum and transgender rights ......................................... 49
8. Where the US falls short on gender identity/expression asylum jurisprudence ............................................. 54
CONCLUSIONS ............................................................................................................................................................... 59
9. The exceptionalist configuration of US asylum adjudication system for transGENDER asylum, the RAIO
directorate training material AND the UNHCR guidelines on gender identity claims .............................................. 59
9.1. The UNHCR Guidelines on sexual orientation and gender identity ......................................................... 59
9.2. The RAIO Training 2019 on LGBTI asylum claims and sexual minorities .................................................. 63
9.3. Analysis of US asylum adjudication for sexual minorities ........................................................................ 67
10. Gender expression, trans health care and legal gender recognition: recommendations ............................ 73
10.1. The inclusion of gender expression to the asylum grounds ................................................................. 73
10.2. The Right to Legal Recognition ............................................................................................................. 76
10.3. The right to privacy and bodily integrity .............................................................................................. 78
10.4. Other issues .......................................................................................................................................... 79
Future recommendations ............................................................................................................................................. 80
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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ABSTRACT
This report attempts a comparative review of the state of the art of asylum adjudication for transgender
and gender nonconforming individuals in the US and the EU. The points of reference are the UNHCR
Handbook and guidelines on particular social group, burden of proof and LGBTQI+ asylum claims. This
report will review the pluralist human rights regime for transgender asylum claimants in the EU drawing
on Court of Justice of the European Union jurisprudence as well as the Recast Qualification Directive of the
Common European Asylum System, the Charter of Fundamental Rights of the EU and European Asylum
Support Office guidelines. At the second part of the research, one will focus on particular social group and
persecution practice of Asylum and Immigration Authorities in the US for transgender and gender
nonconforming claims which will be juxtaposed with Board of Immigration Appeals and Supreme Court
relevant case law. Lack of trans health care and legal gender recognition, as well as the inclusion of gender
expression in the asylum grounds will be problematized in the recommendations for the EU/US, as well as
the divergence of practice from UNHCR guidelines.
This report will be a tool for advocates and adjudicators, in order to navigate the complex US asylum system
for transgender and gender nonconforming claimants with a perspective from the practice in the EU. It will
identify divergence of US asylum adjudication for gender identity/expression claims from the UNHCR
guidelines and good practices, as well developing Human Rights norms and law on gender
identity/expression, for example the Yogyakarta principles as well as other stakeholders and institutional
tools. It aims to expand the view of transgender asylum by problematizing sex/gender diversity among
asylum claimants, lack of trans health care and legal gender recognition at the country of origin as well as
the lack of inclusion of gender expression in asylum adjudication. It aims to provide arguments based on
legal research for advocates representing transgender and gender nonconforming claimants on the latter
ones' inclusion to a particular social group for the purposes of asylum and identify circumstances where
socio-economic discrimination rises to the level of persecution for transgender and gender nonconforming
asylum claimants in the country of origin.
INTRODUCTION-METHODOLOGY OF THE REPORT
Drawing on literature review in Europe and the U.S. on transgender and gender nonconforming asylum
adjudication, I will review current trends in EU and US refugee status determination for assessing
transgender and gender nonconforming asylum claims. After I juxtapose the Common European Asylum
System and the US asylum regime, I will delve into jurisprudence of the Court of Justice of the European
Union and elaborate on the (Recast) Qualification Directive and its application in Member States. I will
perform an analysis of transgender and asylum jurisprudence of the CJEU, which I will examine in
comparison with the U.S. asylum regime, as it is revealed by exploratory interviews of U.S. asylum attorneys
and NGO experts on transgender and gender nonconforming asylum claims. I will examine particularly the
differences in establishing membership to a particular social group for transgender and gender
nonconforming asylum claimants, the relationship with other asylum grounds, medicalization and binarism
in gender identity/expression in EU and US asylum policies and the concept of persecution from state or
non-state actors as well as cumulative harm which rises to the level of persecution even if it affects mainly
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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the deprivation of socioeconomic rights. Concluding, I will argue for good policies on transgender asylum
claims based on the depathologization of transgender identity, privacy considerations, shared burden of
proof and the inclusion of gender expression to the grounds qualifying for international protection through
the concept of gender nonconformity as an inclusive concept for assessing gender diverse asylum claims.
1. SYNOPSIS OF UNHCR GUIDELINES
1.1. REFUGEE DEFINITION
A person is considered a refugee under the 1951 Convention if he meets the criteria outlined in the
definition. This must occur before the official determination of his refugee status. Therefore, recognizing
his refugee status does not make him a refugee, but rather declares him to be one. He is recognized not
because he becomes a refugee, but because he already is one.
1
The determination of a person's refugee status is a two-step process. First, it is necessary to determine the
pertinent case facts. Second, the definitions contained in the 1951 Convention and the 1967 Protocol must
be applied to the newly discovered facts.
2
According to Article 1 A (2) of the 1951 Convention, the term "refugee" applies to any person who: As a
result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside
the country of his nationality and is unable or unwilling to avail himself of the protection of that country.
The definition is summarized by the phrase "well-founded fear of being persecuted".
3
In order to determine
refugee status, it will be necessary to evaluate the applicant's statements and evaluate the circumstances
in his country of origin.
4
The qualification "well-founded" is added to the element of fear, which is a mental state and subjective
condition. This suggests that a person's status as a refugee is determined not only by his state of mind, but
also by the objective circumstances that support this state of mind. Therefore, the term "well-founded
fear" contains both a subjective and an objective component, and both components must be considered
when determining whether well-founded fear exists.
5
1.2. PARTICULAR SOCIAL GROUP ACCORDING TO THE UNHCR GUIDELINES
One of the five grounds listed in Article 1A(2) of the 1951 Convention relating to the Status of Refugees
("1951 Convention") is "membership in a particular social group". It is the least defined ground and is not
defined by the 1951 Convention itself. States have recognized women, families, tribes, occupational
groups, and LGBTQ+ individuals as constituting a particular social group for the purposes of the 1951
Convention. It is increasingly invoked in refugee status determinations. This development has contributed
1
UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, para 28
https://www.refworld.org/docid/4f33c8d92.html [accessed 5 January 2023] accessed 8 January 2023.
2
Idem.
3
Idem, para 34.
4
Idem.
5
Idem.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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to a greater understanding of the refugee definition as a whole. UNHCR Guidelines provide legal
interpretation guidance for evaluating claims in which a claimant asserts a well-founded fear of persecution
due to his or her membership in a particular social group.
6
While the ground requires delimitation—that is, it cannot be interpreted so as to render the other four
Convention grounds redundant—its proper interpretation must be consistent with the object and purpose
of the Convention. In accordance with the Convention's language, this category cannot be interpreted as a
"catch-all" that applies to all individuals who fear persecution. In order to preserve the structure and
integrity of the Convention's refugee definition, a social group cannot be defined solely by the fact that it
is persecuted.
7
There is no "closed list" of groups that may constitute a "particular social group" under Article 1A (2). There
is no specific list of social groups in the Convention, nor is there any indication in the ratification history
that such a list exists. Rather, the term membership in a particular social group should be interpreted in an
evolutionary manner, taking into account the diverse and changing nature of groups in different societies
and the development of international human rights standards.
8
The grounds of the Convention are not mutually exclusive. A person may qualify for refugee status on the
basis of more than one of the grounds listed in Article 1A (2) Refugee Convention. For instance, a claimant
may assert that her refusal to wear traditional clothing puts her at risk of persecution. She may be able to
establish a claim based on political opinion (if the State views her conduct as a political statement that it
seeks to suppress), religion (if her conduct is based on a religious conviction opposed by the State), or
membership in a particular social group, depending on the particular circumstances of the society.
9
Judicial decisions, regulations, policies, and practices have varied in their interpretations of what
constitutes a social group in the context of the 1951 Convention. In common law jurisdictions, two methods
have dominated decision-making that according to the UNHCR must be applied alternatively, not
cumulatively.
10
The "protected characteristics" approach (sometimes referred to as an "immutability" approach) examines
whether a group is united by an immutable trait or by a trait so fundamental to human dignity that a person
should not be compelled to abandon it. An immutable quality may be innate (such as sex or race) or
inalterable for other reasons (such as the historical fact of a past association, occupation or status). Human
rights norms may assist in identifying characteristics deemed so fundamental to human dignity that
changing them should not be required of anyone. A decision-maker adopting this approach would consider
whether the asserted group is defined by: (1) an innate, unchangeable characteristic; (2) a past temporary
or voluntary status that is unchangeable due to its historical permanence; or (3) a characteristic or
association that is so fundamental to human dignity that group members should not be compelled to
abandon it. Using this approach, courts and administrative bodies in a number of jurisdictions have
concluded that, for example, women, LGBTQ+ individuals, and families can constitute a particular social
group for purposes of Article 1A. (2).
11
The second approach examines whether a group shares a characteristic that makes them a recognizable
group or distinguishes them from the rest of society. This approach has been referred to as "social
6
UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 2: "Membership of a Particular Social Group" Within the Context
of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02
<https://www.refworld.org/docid/3d36f23f4.html> accessed 5 January 2023.
7
Idem, para 2.
8
Idem, para 3.
9
Idem, para 4.
10
Idem, para 5.
11
Idem, para 6.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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perception" In accordance with this analysis, women, families, and LGBTQ+ individuals have been identified
as distinct social groups, depending on the prevailing social conditions.
12
In jurisdictions governed by civil
law, the particular social group ground is typically less developed. The majority of decision-makers place a
greater emphasis on the risk of persecution than on the criteria for defining a particular social group.
Despite this, both the protected characteristics and social perception approaches have been discussed.
13
It is widely accepted in state practice that an applicant is not required to demonstrate that the members
of a particular group know or associate with each other. That is, the group's "cohesion" is not required. The
relevant inquiry is whether group members share a common characteristic. This is comparable to the
analysis adopted for the other Convention grounds, where there is no requirement that members of a
religion or political opinion group together or belong to a "cohesive" group. Thus, women may constitute
a particular social group under certain conditions based on the shared trait of sex, regardless of whether
they associate with one another on the basis of this trait.
14
A claimant is not required to show that all
members of a particular social group are at risk of persecution in order to establish the existence of that
group.
15
The size of the alleged social group is irrelevant for determining whether a particular social group exists
within the meaning of Article 1A. (2). This is also true for cases involving other Convention grounds. States
may, for instance, seek to suppress religious or political ideologies that are widely held by members of a
particular society, perhaps even by a majority of the population; the fact that large numbers of people are
at risk of persecution cannot be used as a reason to deny international protection when it is otherwise
warranted.
16
In a number of jurisdictions, "women" have been recognized as a distinct social group. This does not imply
that every woman in society is eligible for refugee status. A claimant must also demonstrate a well-founded
fear of being persecuted on account of her membership in the particular social group, must not fall under
any of the exclusion grounds, and must meet all other pertinent criteria.
17
However, there are still numerous obstacles to the successful recognition of gender-based PSG claims. First,
one of the most pervasive challenges is the overwhelming reluctance of both advocates and decision-
makers to frame the relevant PSG as simply "women"; however, according to leading case law, this is
theoretically possible regardless of the adopted test.
18
In the leading decision of the Australian High Court
in Khawar, Gleeson CJ explained that the PSG in that case could be characterized simply as "women"
because "[w]omen in any society are a distinct and recognizable group" and "their distinctive attributes
and characteristics exist independently of how they are treated, either by males or by governments".
19
Claims based on membership in a particular social group defined by sexuality or gender identity are an
additional prominent source of PSG case law in a vast number of jurisdictions. In addition, as mentioned
previously, in some jurisdictions sexual orientation has been explicitly included in domestic legislation
either as an example of a PSG
20
or as an independent ground for refugee status,
21
in some cases as a result
of the transposition of Article 10(1)(d) of the Qualification Directive, which states that, "depending on the
12
Idem, para 7.
13
Idem.
14
Idem, para 15.
15
Idem, para 17.
16
Idem, para 18.
17
Idem.
18
See Liu v Secretary of State for the Home Department [2005] All ER (D) 304 (Mar) (17 March 2005) [12]. His Honour also acknowledged that ‘it is not essential
that all members of it [the PSG] suffer persecution’.
19
(2002) 210 CLR 1, 14 [35] (Gleeson CJ).
20
UN High Commissioner for Refugees (UNHCR), The 'Ground with the Least Clarity': A Comparative Study of Jurisprudential Developments relating to
'Membership of a Particular Social Group', August 2012, PPLA/2012/ 02, 21 <https://www.refworld.org/docid/4f7d94722.html> accessed 5 January 2023.
21
Idem, 21-22.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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circumstances in the country of origin, a particular social group may include a group based on a common
characteristic of sexual orientation".
22
In jurisdictions that have applied the protected characteristics approach in this context, there appears to
be little difficulty in accepting that sexual orientation or gender identity meet this criterion, given that in
the landmark Ward decision, the Canadian Supreme Court acknowledged that "the first category [innate
or unchangeable characteristics] would encompass individuals fearing persecution on the basis of gender,
linguistic background, and sexual orientation".
23
Much of the case law concerns claims by gay men, but it is clear that the PSG ground of sexual orientation
or sexual identity applies to a wider range of contexts, including claims by lesbian,
24
bisexual,
25
and intersex
applicants,
26
as well as transgender persons,
27
and "gay men with female sexual identities".
28
As noted by
Lord Rodger of Earlsferry in HJ and HT, "the Convention offers protection to gay and lesbian people — and,
I would add, to bisexuals and everyone else on a broad spectrum of sexual behavior" because they are
entitled to the same freedom from fear of persecution as their straight counterparts.
29
Although there are difficulties in refugee claims based on sexual orientation and identity, including the
pervasive question of when (if ever) "discretion" can be legitimately demanded of an applicant, these
concerns do not pertain to the composition or delineation of the PSG.
30
In this context, the most significant remaining difficulty directly related to PSG claims relates to ongoing
difficulties in the application of the social perception approach. In Australia, there is ample authority that
sexual orientation or identity can constitute a PSG.
31
In France, however, "homosexuals" are not recognized
as a particular social group unless "the behavior of the claimant has been perceived by society as
transgressing the social order".
32
This has resulted in the rejection of claims where the applicant did not
seek to "express openly her homosexuality through her behavior", such that "she does not belong to a
sufficiently circumscribed and identifiable group of persons to constitute a social group",
33
whereas
22
See Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender identity in Europe, September
2011; and Petter Hojem, Fleeing for love: asylum seekers and sexual orientation in Scandinavia, New Issues in Refugee Research Paper No. 181, December 2009.
23
Ward [1993] 2 SCR 689, 739 (La Forest J).
24
See HJ and HT in which the UK Supreme Court noted that ‘[t]here is no doubt that gay men and women may be considered to be a particular social group’:
[2010] 3 WLR 386, 393 [10]. For recent German cases, see Verwaltungsgericht (VG) Neustadt an der Weinstraße [Neustadt an der Weinstraße Administrative
Court], 3 K 753/07.NW, 8 September 2008, accepting a claim by an Iranian woman on the basis that as a lesbian woman: ‘The applicant has adduced evidence
that she belongs to a group whose members share characteristics that are so fundamental to identity, that they should not be forced to renounce it, and that the
group in Iran has a distinct identity, because it is perceived by the surrounding society as being different’.
25
See Nicole LaViolette, ‘UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender identity’: a Critical Commentary (2010) 22(2)
International Journal of Refugee Law 173, 190.
26
Idem.
27
See Canadian case RPD File MA8-045150 (23 June 2011) in which the tribunal accepted that ‘there is a serious possibility that the claimant would be a victim
of persecution by reason of her membership in a particular social group, that of transgender persons, if she had to return to México’: at [53]. For a French decision
accepting a claim by an Algerian transsexual, see M B, Commission des Recours des Réfugiés (CRR) [French Refugees Appeal Board], 496775, 15 February
2005. See also UNHCR Guidance Note, note 296 above.
28
Hernandez Montiel v INS, 225 F. 3d 1084, 1091 (9th Cir., 2000). The Court explained that, ‘[s]exual orientation and sexual identity are immutable; they are so
fundamental to one’s identity that a person should not be required to abandon them’: at 1093. See also UNHCR, ‘Guidelines on International protection: gender-
related persecution’, note 78 above, [16] where it is explained that ‘[r]efugee claims based on differing sexual orientation contain a gender element (…) the most
common claims involve homosexuals, transsexuals or transvestites, who have faced extreme public hostility, violence, abuse, or severe or cumulative
discrimination’.
29
HJ and HT [2010] 3 WLR 386, 418 [76]. For further application of this principle in the context of lesbian women, see MK (Lesbians) Albania CG [2009]
UKAIT 00036, [350].
30
For other case law rejecting the ‘discretion requirement, see Norbert Okoli v Minister of Citizenship and Immigration (2009) FC 332 (31 March 2009) [36]:
‘The Federal Court has repeatedly found such findings perverse as they require an individual to repress an immutable characteristic’ (citing Sadeghi-Pari v Canada
(M.C.I.) 2004 FC 282, [29]). See also the emphatic rejection of the discretion requirement in Karouni v Gonzales, 399 F. 3d 1163, 1173 (9th Cir., 2005). See also
HJ and HT as this was the crucial issue in that case.
31
In Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1704; 178 A.L.R. 742, Justice Mansfield of the Federal Court of Australia noted that
the panel had ‘accepted that the applicant’s homosexuality meant that he was member of particular social group within the meaning of Article 1A(2) of the
Convention’, and that this ‘has been accepted by the court on a number of occasions’: at 744 [9]. See also Appellant S395/2002 v MIMA (2003) 216 CLR 473,
494 [55] (McHugh and Kirby JJ).
32
Mme AGB, 498570 (12 September 2005). This draws on the 1997 decision of the Conseil d’Etat in Decision No. 171858. This appears to require in most cases
that the relevant law of the home country prohibit homosexual conduct.
33
. Mlle F, Cour Nationale du Droit d’Asile (CNDA) [French National Court of Asylum], 513547, 25 March 2005. See also H, Cour Nationale du Droit d’Asile
(CNDA) [French National Court of Asylum], 605398, 7 May 2008 where the homosexual applicant from Kosovo was found not to be the target of rejection by
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
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"persons who assert their homosexuality and manifest it through exterior behavior" are more likely to be
accepted as falling within the PSG ground.
34
The French interpretation of "social perception" means that
so long as a person conceals his or her sexual orientation or gender identity from others, no one can
perceive it.
35
1.3. DISCRIMINATION VS PERSECUTION
There is no universally accepted definition of "persecution", and numerous attempts to develop one have
met with limited success. It can be inferred from Article 33 of the 1951 Convention that any threat to life
or freedom based on race, religion, nationality, political opinion, or membership in a particular social group
is always persecution. Other grave violations of human rights would also constitute persecution for the
same reasons.
36
The determination of whether other harmful actions or threats constitute persecution will depend on the
specifics of each case, including the subjective element mentioned in the preceding paragraphs. The
subjective nature of the fear of persecution necessitates an evaluation of the individual's thoughts and
emotions.
37
Any actual or anticipated measures against him must also be viewed in the context of these opinions and
sentiments. Due to variations in the psychological make-up of individuals and in the circumstances of each
case, interpretations of what amounts to persecution are bound to vary.
38
In many societies, there are differences in the treatment of different groups to a greater or lesser extent.
People who are treated less favorably due to such distinctions are not necessarily victims of persecution.
Only under certain conditions does discrimination constitute persecution. This would be the case if
measures of discrimination resulted in substantial disadvantages for the affected individual, such as severe
restrictions on his right to earn a living, his right to practice his religion, or his access to normally available
educational facilities.
39
1.4. BURDEN AND STANDARD OF PROOF
According to the general principles of the law of evidence, the burden of proof rests with the proponent of
the claim. Thus, in refugee claims, the burden of establishing the veracity of the applicant's allegations and
the accuracy of the facts upon which the claim is based falls on the applicant. The burden of proof is met
when the applicant provides a truthful account of the pertinent facts so that a decision can be made based
on those facts. In light of the particulars of a refugee's circumstance, the adjudicator shares the
responsibility to ascertain and assess all pertinent facts. This is accomplished in large part by the
adjudicator's familiarity with the objective situation in the country of origin in question, knowledge of
the Kosovar society, but only of his immediate circle of acquaintances; hence he ‘cannot be regarded as belonging to a circumscribed group of people sufficiently
identifiable to constitute a PSG’.
34
K, Cour Nationale du Droit d’Asile (CNDA) [French National Court of Asylum], 571904, 1 July 2008. See also G, Cour Nationale du Droit d’Asile (CNDA)
[French National Court of Asylum], 571886 (11 April 2008) in which the CNDA relied on the fact that the applicant displayed his homosexuality through his job
(folk dancing) and his choice of clothes to establish he requisite ‘external behaviour’.
35
Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender identity in Europe, September 2011,
36.
36
UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, 51:
https://www.refworld.org/docid/4f33c8d92.html> accessed 5 January 2023.
37
Idem, para 5.
38
Idem, para 43.
39
Idem, para 54.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
10
relevant matters of common knowledge, guiding the applicant in providing the pertinent information, and
adequately verifying alleged facts that can be proven.
40
In the context of the responsibility of the applicant to prove facts in support of his/her claim, "standard of
proof" refers to the level of evidence required to convince the adjudicator of the veracity of the applicant's
factual assertions. The facts that must be "proven" are those pertaining to the applicant's background and
personal experiences that allegedly gave rise to a fear of persecution and a consequent unwillingness to
seek the protection of the country of origin.
41
In common law nations, the law of evidence governing criminal prosecutions stipulates that cases must be
proven "beyond a reasonable doubt". In civil claims, the law does not require this level of proof; instead,
the adjudicator must decide the case based on the "balance of probabilities". Similarly, in refugee claims,
the adjudicator is not required to be fully convinced of the veracity of every factual assertion made by the
applicant. Based on the evidence presented and the veracity of the applicant's statements, the adjudicator
must determine whether it is likely that the applicant's claim is credible.
42
Clearly, the applicant has an obligation to tell the truth. In saying this, however, consideration should also
be given to the fact that, due to the applicant's traumatic experiences, he/she may not speak freely; or
that, due to the passage of time or the intensity of past events, the applicant may not be able to remember
all factual details or recount them accurately or may confuse them; thus, he/she may be vague or
inaccurate when providing detailed facts. Inability to recall or provide all dates or minor details, as well as
minor inconsistencies, insubstantial vagueness, or incorrect statements that are not material, may be
considered in the final credibility evaluation, but should not be decisive.
43
The term "benefit of the doubt" is used in the context of the burden of proof regarding the applicant's
factual assertions. Given that there is no requirement in refugee claims for the applicant to prove all facts
to such a degree that the adjudicator is fully convinced that all factual assertions are true, the adjudicator
would typically have some doubts about the facts asserted by the applicant. When the adjudicator
determines that the applicant's story is coherent and plausible on the whole, any element of doubt should
not prejudice the applicant's claim; the applicant should be given the "benefit of the doubt".
44
In common law countries, a substantial body of case law has developed regarding the standard of proof to
be applied in asylum claims to establish well-foundedness. This body of law largely supports the position
that there is no need to prove well-foundedness beyond a reasonable doubt, or even that persecution is
more likely than not. To establish "well-foundedness", it must be demonstrated that persecution is
plausible.
45
40
UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998
https://www.refworld.org/docid/3ae6b3338.html> accessed 5 January 2023.
41
Idem, para 7
42
Idem, para 8
43
Idem, para 9
44
Idem. para 12
45
Idem, para 17.
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2. HUMAN RIGHTS LAW ON GENDER DIVERSITY, DEPATHOLOGIZATION,
AND THE YOGYAKARTA PRINCIPLES
2.1. HUMAN RIGHTS LAW ON TRANS LIVES
It is essential to establish from the outset the objectives of an expanded human rights framework.
International conventions and customs have established a broad framework for analyzing human rights,
but trans experiences are conspicuously absent. However, this framework has been replicated in national
and regional systems. Charters, including the European Convention on Human Rights (ECHR), the American
Convention on Human Rights (ACHR), and the African Charter on Human and People's Rights (ACHPR),
protect the same fundamental principles as international treaties. Each of these agreements (and their
substantive rights) have been exhaustively interpreted by the courts and commissions that oversee their
enforcement. These actors' case law reveals how broad rights protections apply to new and evolving areas
of the law. In addition, a variety of soft law actors, such as the UN Human Rights Treaty Bodies (UN Treaty
Bodies) and the Special Procedures of the UN Human Rights Council (UN Special Procedures), interpret and
apply human rights standards. In recent years, they have been at the forefront, along with national and
regional judges, of explaining and affirming the status of trans individuals under human rights law.
46
This
has required applying fundamental rights standards (such as nondiscrimination and bodily integrity) to
trans-specific experiences. In the absence of clearer guidance from treaty or customary law, these
"subsidiary" sources provide valuable insight into the intersection of trans identities and human rights. In
order to better comprehend the relationship between trans lives and human rights, in addition to judicial
decisions, "soft law" sources are also very important.
47
While soft law is not expressly listed as a
"subsidiary" source in Article 38(1), it has an "essential" status.
48
Soft law, like judicial decisions, has played a significant role in the incorporation of trans identities into
international law. The UN Treaty Bodies, the Special Procedures, the UN Human Rights Council (HRC
Council), and the UN High Commissioner for Human Rights (UN HCHR) have repeatedly incorporated trans
experiences into their work in recent years.
49
Not only have these soft law organizations provided
persuasive intellectual and legal arguments for why transgender people should be protected, but they have
also documented how and why trans lives already enjoy important international protections. In particular,
the UN High Commissioner for Human Rights monitors national requirements for gender recognition and
has recommended that certain conditions, notably sterilisation, are incompatible with basic human rights.
Regional actors, such as the Council of Europe, the Organisation of American States, and the African
Commission on Human and People's Rights (ACmHPR), have taken steps (albeit to varying degrees) to
enhance and promote transgender human rights. Although soft law sources, unlike judicial decisions, do
not create binding norms, they can play an important role in the development of international human
rights. Soft law is an effective method for "bringing an issue onto the international agenda".
50
In the
absence of explicit treaty references, soft law such as Resolution 17/19 of the HRC Council
51
promotes and
46
UN Human Rights Committee, ‘Concluding Observations on the Initial Report of Bangladesh’ (27 April 2017) UN Doc No. CCPR/C/BGD/CO/1, [11(e) and
12(e)]
47
Dinah Shelton, ‘Compliance with International Human Rights Soft Law’ (1997) 29 Studies in Transnational Legal Policy 119.
48
Peter Dunne, The Conditions for Obtaining Legal Gender Recognition: A Human Rights Evaluation (Doctoral Thesis 2018).
49
See also, United Nations Human Rights Council, ‘17/19 Human rights, sexual orientation and gender identity’ (14 July 2011) UN Doc No. A/HRC/RES/17/19;
United Nations Human Rights Council, ‘32/2. Protection against violence and discrimination based on sexual orientation and gender identity’ (15 July 2016) UN
Doc No. A/HRC/RES/32/.
50
Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakuraman (eds), International Human Rights Law (2nd edn, Oxford University
Press 2014) 93.
51
Resolution 17/19 is a landmark resolution adopted by the UN Human Rights Council. It recognised the discrimination and violence which LGBTI persons
experience worldwide.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
12
facilitates significant debates.
52
Less than five years after the first-ever United Nations resolution on LGBTI
rights, the HRC Council appointed a "Independent Expert on Protection against Violence and Discrimination
Based on Sexual Orientation and Gender Identity".
53
In the absence of unanimity and the will to establish
hard law, soft law can also "express international standards and consensus on the need for particular
action".
54
In some instances, soft law instruments are the only way to reach an international consensus on
politically sensitive issues. According to Boyle, "it may be easier to reach an agreement" when states realize
that "their legal obligation and the repercussions of noncompliance are more limited".
55
This is especially
true in trans contexts, where governments may be reluctant to accept binding standards that
fundamentally differ from their own national law. In fact, given the sensitivity and lack of protection for
trans identities, it is not surprising that soft law has been the most influential international source of trans
affirmation.
56
Article 8 ECHR protects "private life", which the European Court of Human Rights has interpreted to include
"physical and moral integrity".
57
In the past, the Court has found a violation of article 8 when an applicant
was subjected to a non-consensual gynecological examination
58
and when national criminal laws failed to
protect a young victim of sexual abuse.
59
In YY v. Turkey,
60
the ECtHR affirmed that article 8 protects "the
right of [trans] persons to personal development and physical and moral security".
61
Article 8 is now the
Council of Europe's primary instrument for defending transgender bodily integrity.
62
It has been invoked
to guarantee physical autonomy in medical and legal transition pathways.
63
However, article 8 of the
European Convention on Human Rights is a qualified right and can be subject to proportionate restrictions,
which must be lawful and necessary in a democratic society.
64
Equality and nondiscrimination, like bodily integrity, are fundamental human rights principles.
65
Human rights actors increasingly recognize the nondiscrimination rights of transgender individuals.
According to the UN High Commissioner for Human Rights, "in their general comments, concluding
observations, and views on communications, human rights treaty bodies have confirmed that States are
required to protect all individuals from discrimination based on...gender identity".
66
Since the mid-1990s,
United Nations actors have (not without controversy) affirmed the equality of gay, lesbian, and bisexual
people.
67
In recent years, however, a concerted effort has been made to mainstream trans equality. The
52
Writing in the context of disability law, Sabatello and Sculze explain that, in the years preceding adoption of the UN Convention on the Rights of Persons with
Disabilities (UN CRPD), “a number of so called ‘soft law’ instruments covering different aspects of human rights of persons with disabilities were adopted”, Maya
Sabatello and Marianne Schulze, ‘Introduction’ in Maya Sabatello and Marianne Schulze (eds) Human Rights and Disability Advocacy (University of Pennsylvania
Press 2013) 3.
53
United Nations Human Rights Council, ‘32/2. Protection against violence and discrimination based on sexual orientation and gender identity’ (15 July 2016)
UN Doc No. A/HRC/RES/32/2.
54
Dinah Shelton, ‘Compliance with International Human Rights Soft Law’ (1997) 29 Studies in Transnational Legal Policy 119, 141.
55
Alan Boyle, ‘Soft Law in International Law-Making’ in Malcolm Evans (ed), International Law (2nd edn, Oxford University Press 2006) 143-144.
56
General Assembly of the United Nations, ‘67/168. Extrajudicial, summary or arbitrary executions’ (15 March 2013) UN Doc No. A/RES/67/168, [6(b)]; United
Nations Human Rights Council, ‘32/2. Protection against violence and discrimination based on sexual orientation and gender identity’ (15 July 2016) UN Doc
No. A/HRC/RES/32/.
57
X and Y v Netherlands [1986] 8 EHRR 235, [22].
58
YF v Turkey App No. 24209/94 (ECtHR, 22 July 2003).
59
X and Y v Netherlands [1986] 8 EHRR 235.
60
App No. 14793/08 (ECtHR, 10 March 2015).
61
Idem, [58].
62
AP, Garcon and Nicot v France App Nos. 79885/12, 52471/13 and 52596/13 (ECtHR, 6 April 2017).
63
Schlumpf vs Switzerland App no 29002/06 (ECHR, 9 January 2009); YY v Turkey, App no. 14793/08 (ECHR, 10 June 2015).
64
ECHR, art. 8(2) .
65
Stephanie Farrior, Equality and non-discrimination under international law (Ashgate 2015); Dagmar Schiek, Lisa Waddington and Mark Bell (eds), Cases,
materials and texts on national, supranational and international non-discrimination law (Hart 2007); David Oppenheimer, Sheila Foster and Sora Han,
Comparative Equality and Anti-Discrimination Law: Cases, Codes, Constitutions and Commentary (Foundation Press 2015).
66
Ivona Truscan and Joanna Bourke-Martignoni, ‘International Human Rights Law and Intersectional Discrimination’ (2016) 16 Equal Rights Review 103, 105.
According to Davies, intersectionality “goes beyond merely merging separate identities but considers the unique identity developed from an individual belonging
to multiple categories simultaneously”, Aisha Nicole Davies, ‘Intersectionality and International Law: Recognizing Complex Identities on the Global Stage’ (2015)
28 Harvard Human Rights Journal 205, 208.
67
Aisha Nicole Davies, ‘Intersectionality and International Law: Recognizing Complex Identities on the Global Stage’ (2015) 28 Harvard Human Rights Journal
205 208.
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United Nations Human Rights Council (UN HRC) and the United Nations Committee on Economic, Social,
and Cultural Rights (UN CESCR) have confirmed publicly that a person's gender identity should not impede
their enjoyment of human rights.
68
In G v. Australia, the UN Human Rights Committee stated unequivocally
that "the prohibition against discrimination under article 26 [ICCPR] includes discrimination based
on...gender identity, including transgender status".
69
Similarly, in their Concluding Observations on State
Party Reports, numerous UN Treaty Bodies have critiqued discriminatory national regulations and practices
against trans populations. In some instances, these committees have recommended corrective policies,
such as the adoption or modification of laws, to promote trans equality.
70
This treaty law is strengthened
by the work of the Special Procedures. In their investigations and thematic reports, the Special Procedures
frequently promote nondiscrimination against transgender people and condemn transphobia.
71
Regionally,
judges and other actors advocate for trans equality.
72
In its landmark decision, Identoba and Others v.
Georgia, the European Court of Human Rights ruled that Article 14 of the Convention prohibits
discrimination on the basis of gender identity.
73
There is no absolute right to equality and nondiscrimination. If the majority of human rights regimes
prohibit differential treatment without objective and reasonable justification, then unequal treatment may
be legitimate if sufficient reasons exist. In its General Comment No. 18, the UN HRC states, "[n]ot every
differentiation of treatment will constitute discrimination if the criteria for such differentiation are
reasonable and objective and if the purpose is to achieve a legitimate purpose under the Covenant".
74
In
determining whether discrimination is legal, the ECtHR employs a two-stage analysis
75
that "has been
adopted, explicitly or implicitly, by the vast majority of other human rights bodies".
76
2.2. THE YOGYAKARTA PRINCIPLES
The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and
Gender Identity were released on March 26, 2007 by a group of human rights experts. The Principles are
intended to be a comprehensive and consistent statement of the obligation of states to respect, protect,
and fulfil the human rights of all individuals, regardless of their sexual orientation or gender identity. Since
their introduction, the Principles have garnered a great deal of attention from states, United Nations actors,
and civil society. It is probable that they will play a substantial role in advocacy efforts and, whether directly
or indirectly, in normative and judicial development. This article represents the first published critical
analysis of the Principles. It seeks to situate them within the contexts of (a) the actual situation of
individuals with diverse sexual orientations and gender identities and (b) the applicable international
human rights law as it exists today. The Yogyakarta drafting process and the resulting text are examined in
this context.
77
68
Ivona Truscan and Joanna Bourke-Martignoni, ‘International Human Rights Law and Intersectional Discrimination’ (2016) 16 Equal Rights Review 103, 109.
69
Idem, 120.
70
Aisha Nicole Davies, ‘Intersectionality and International Law: Recognizing Complex Identities on the Global Stage’ (2015) 28 Harvard Human Rights Journal
205, 206.
71
‘Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity’ (19 April 2017) UN Doc
No. A/HRC/35/36l; ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’ (5 January 2016) UN Doc No.
A/HRC/31/57, [34] – [36], [48] – [50]; United Nations Special Rapporteur on the Situation of Human Rights Defenders, ‘Situation of human rights defenders’ (30
July 2015) UN Doc No. A/70/217, [65] – [67], and [93(a)].
72
P v S (n 165); PV v Spain App No. 35159/09 (ECtHR, 30 November 2010)
73
Identoba and Others v Georgia [2015] 39 BHRC 510, [96].
74
United Nations Human Rights Committee, ‘General Comment No 18 on Non-Discrimination’ (1989), [13].
75
L and V v Austria [2003] 34 EHRR 55, [44].
76
Daniel Moeckli, ‘Equality and Non-Discrimination’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakuraman (eds), International Human Rights Law (2nd
edn, Oxford University Press 2014) 167.
77
Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’
(2008) 8 Human Rights Law Review, 207.
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Those who violate gender norms are more likely to be the target of violence. The organisation "Transgender
Day of Remembrance" estimates that one transgender person is killed every month in the US.
78
In Nepal,
police have beaten metis (women who were assigned male at birth) with batons, gun butts, and sticks,
burned them with cigarettes, and forced them to engage in oral sex.
79
Transgender people are "often
subjected to violence... to punish them for transgressing gender barriers or for challenging dominant
conceptions of gender roles",
80
and transgender youth are "among the most vulnerable and marginalized
young people in society".
81
According to a Canadian report, the idea that there are only two genders is one
of the most fundamental concepts in our binary Western way of thinking. Transgender individuals
challenge our fundamental worldview. And we force them to pay for our confusion with their suffering.
82
The Yogyakarta Principles on the Application of International Human Rights Law to Sexual Orientation and
Gender Identity (the Yogyakarta Principles) were conceived in the context of such diverse approaches,
inconsistency, gaps, and opportunities. In 2005, a coalition of human rights NGOs proposed the creation of
the Yogyakarta Principles, which was subsequently facilitated by the International Service for Human Rights
and the International Commission of Jurists. It was proposed that the Principles serve a threefold
purpose.
83
In the first place, they should constitute a "mapping" of the experiences of human rights
violations endured by individuals with various sexual orientations and gender identities. This exercise
should be as inclusive and comprehensive as possible, taking into account the unique ways in which human
rights violations may be experienced in various regions of the world. Second, the application of
international human rights law to such occurrences should be spelled out with as much clarity and precision
as possible. Lastly, the Principles should elaborate on the nature of each state's obligation to effectively
implement each of the human rights obligations.
84
There are 29 fundamentals. Each consists of a statement of international human rights law, its application
to a particular situation, and an explanation of the nature of the State's obligation to implement the legal
obligation. The Principles are organized in some way. The first three principles outline the universality of
human rights and their application to all persons without discrimination, as well as the right of all people
to be recognized before the law. The experts placed these elements at the beginning of the text to remind
readers of the fundamental importance of the universality of human rights, the scale and scope of
discrimination against individuals with diverse sexual orientations and gender identities, and the manner
in which they are frequently rendered invisible within a society and the legal system.
85
Principles 22 and 23 underline the rights of persons to seek asylum from persecution based on sexual
orientation or gender identity. Undoubtedly, as the Principles generate further commentary, additional
omissions will be identified.
86
Notable is the fact that the Principles use exclusively gender-neutral language. The approach was adopted
deliberately to ensure the application of all aspects of the Principles with regard to the life experiences of
all people, regardless of their gender identity and with full respect for it, while avoiding binary gender
78
Transgender Day of Remembrance, ‘About the Day of Remembrance’, available at: http://www.gender.org/remember/day/what.html
[last accessed 15 February 2008].
79
Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly, 3 July 2001,
A/56/156 at para. 17.
80
Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly, 3 July 2001,
A/56/156 at para. 17
81
Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Commission on Human Rights, 5 January 2004,
E/CN.4/2004/9, para. 123.
82
Barbara Findlay, as cited in EGALE Canada Human Rights Trust, ‘Outlaws & In-laws: Your Guide to LGBT Rights, Same-Sex Relationships and Canadian
Law’ (2003) at 46.
83
Address of the Rapporteur at the launch event of the Principles, Geneva, March 2007.
84
Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’
(2008) 8 Human Rights Law Review, 207.
85
Idem.
86
Idem.
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15
constructions. This success came at the cost of erasing from the text any mention of the unique
circumstances and concerns of women. It could be argued that this omission diminishes the document's
capacity to forcefully address the problems facing lesbians in numerous countries.
87
The HRC, in individual communications subsequent to Toonen, while reaffirming the scope of Article 2.1
and 26 to include sexual orientation-related discrimination, has avoided specifying that this is through a
reading of the term "sex", despite the fact that an individual concurring opinion of two HRC members in
the case of Joslin v New Zealand, in 2002, states categorically that, "it is the Committee's established view
that the prohibition against discrimination extends to sexual orientation."
88
European Court of Justice has
criticized the apparent reliance on the "sex" category,
89
based on the fact that sexual orientation issues are
substantively distinct from the binary men/women issues that the category "sex" is commonly perceived
to address.
Nonetheless, in support of the HRC's strategy, it should be recalled
90
that the majority of discrimination
based on sexual orientation or gender identity is directed at individuals who violate social or cultural gender
norms. In light of the elevated status of sexual discrimination in the Covenant, which is also addressed in
Article 3, the use of the "sex" category appears to elevate the suspect nature of sexual orientation-related
discrimination above that of the other listed categories. Possibly due to considerations such as these, Jack
Donnelly characterized the HRC's approach as "radical and provocative".
91
The HRC's approach has the
additional advantage of avoiding the use of the category "other status" in the absence of clearly established
criteria for when an unspecified form of discrimination can be designated as such.
92
PART A: EU
3. COMMON EUROPEAN ASYLUM SYSTEM AND THE QUALIFICATION
DIRECTIVES
Being an instrument established under EU primary law (Article 78(1) TFEU), the CJEU is primarily
responsible for the correct interpretation of the QD (recast), and its judgments are binding on all Member
States. In its case law, the CJEU has made it clear that the QD, and by extension the QD (recast), "must be
interpreted in light of its general scheme and purpose, and in a manner consistent with the [Refugee
Convention] and other relevant treaties referred to in Article 78(1) of the TFEU". Concerning the
applicability of the Refugee Convention to the interpretation of the QD (recast), the CJEU held in the recent
Alo and Osso judgment
93
that it is clear from recitals (4), (23) and (24) QD (recast) that the Refugee
Convention is the foundation of the international legal regime for the protection of refugees. It emphasized
87
Idem, 236.
88
Joslin v New Zealand (902/1999), CCPR/C/75/D/902/1999 (2003); 10 IHRR 40 (2003).
89
Grant v SouthWest Trains Ltd C-249/96 [1998] ECR I-621; (1998) 1 CMLR 993.
90
Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’
(2008) 8 Human Rights Law Review, 207, 217.
91
Jack Donnelly, ‘Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities in the Global Human Rights Regime’ in Peter Baehr, Cees
Flinterman and Mignon Senders (eds), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Royal Netherlands Academy of
Arts and Sciences 1999).
92
Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’
(2008) 8 Human Rights Law Review, 207, 217.
93
Kreis Warendorf v Ibrahim Alo and Amira Osso v Region Hannover, EU:C:2016:127, para. 29.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
16
that the provisions of the Directive for determining who is eligible for refugee status and the nature of that
status were adopted to guide the competent authorities of the Member States in the application of the
Convention on the basis of common concepts and criteria.
94
Moreover, the CJEU determined that: In
principle, [the considerations regarding the relevance of the Refugee Convention for the interpretation of
the QD (recast) are] relevant only in relation to the conditions for determining who qualifies for refugee
status and the content of that status, since the system laid down by the convention applies only to refugees
and not to beneficiaries of subsidiary protection status, which is intended, as is apparent from recitals 6
and 7, to provide, as is apparent from recitals 6 and 7, to provide subsidiary protection. Nonetheless,
recitals 8, 9 and 39 of Directive 2011/95 state that the EU legislature intended, in response to the Stockholm
Programme, to establish a uniform status for all beneficiaries of international protection and that it chose
to grant beneficiaries of subsidiary protection the same rights and benefits as refugees, with the exception
of derogations that are objectively justified and necessary. Consequently, Chapter VII of Directive 2011/95,
which relates to the substance of international protection, shall apply, in accordance with Article 20(2) of
the directive, to both refugees and beneficiaries of subsidiary protection status, unless otherwise
specified.
95
Consequently, the Refugee Convention can be cited for provisions on international protection applicable
to both refugees and individuals eligible for subsidiary protection. This is also demonstrated by the CJEU's
application of these considerations to the present cases involving the place-of-residence conditions
attached to the residence permits of two Syrian nationals who were granted subsidiary protection status,
as stated by the CJEU.
96
This is not the case for Article 33 of Directive 2011/95, despite the fact that certain articles in Chapter VII
contain such a statement. Rather, this article makes it clear that the "freedom of movement" it establishes
is guaranteed for "beneficiaries of international protection", meaning that refugees and beneficiaries of
subsidiary protection status are subject to the same rules in this regard. Article 26 of the Geneva
Convention, which guarantees refugees the right to freedom of movement, specifies that this freedom
includes not only the right to move freely within the territory of the state that has granted refugee status,
but also the right to choose a place of residence within that territory. There is no indication that the EU
legislature decided to only include the first of these rights in Directive 2011/95, but not the second.
97
In interpreting the QD (recast), an "EU judge"
98
must consider EU primary law, such as the Charter of
Fundamental Rights of the European Union (EU Charter),
99
and "other relevant treaties" referred to in
Article 78(1) TFEU. The issue is discussed in greater detail in An Introduction to the CEAS for Courts and
Tribunals – Judicial Analysis32, but according to the CJEU, the interpretation of the QD must be consistent
with Article 17 of the EU Charter33. In addition, Recital 16 emphasizes that the QD (recast) "respects the
fundamental rights and observes he principles recognized in particular by the [EU Charter]".
100
The EU
Charter, according to its preamble, "reaffirms [...] the rights as they result, in particular, from the
constitutional traditions and international obligations common to the Member States, the [ECHR], the
Social Charters adopted by the [Union] and by the Council of Europe, and the case-law of the [CJEU] and of
the European Court of Human Rights [ECtHR]".
101
94
Idem, para. 28.
95
Idem., paras. 31-33.
96
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
97
Kreis Warendorf v Ibrahim Alo and Amira Osso v Region Hannover, EU:C:2016:127, paras. 34 and 35.
98
When national courts or tribunals are required to interpret the provisions of EU law, the national judge is required to act as an ‘EU judge’, as explained in EASO,
An Introduction to the Common European Asylum System (CEAS) for Courts and Tribunals – A Judicial Analysis, 61.
99
Charter of Fundamental Rights of the European Union of 18 December 2000, as adopted in 2007 [2012] OJ C 326/391 (entry into force: 1 December 2009).
100
Idem, paras. 34 and 35.
101
Idem.
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Article 78(1) of the TFEU does not define "other relevant treaties", and the CJEU has not yet clarified its
components. It may include the treaties listed in Article 9 and recitals (17), (18), (31) and (34), as well as
other treaties deemed relevant to the Refugee Convention's interpretation:
102
1. the Charter of the United Nations, 194535
2. the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
195036
3. the Convention relating to the Status of Stateless Persons, 195437
4. the International Covenant on Civil and Political Rights (ICCPR), 196638
5. the International Convention on the Elimination of All Forms of Racial Discrimination, 196639
6. the Convention on the Elimination of All Forms of Discrimination against Women, 197940
7. the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture), 198441
8. the United Nations Convention on the Rights of the Child, 198942
9. the Rome Statute of the International Criminal Court, 199843
10. the Convention on the Rights of Persons with Disabilities, 200644
First, the CJEU has stated that the CEAS was conceived in a context that supports the assumption that all
Member States observe fundamental rights, as evidenced by the CEAS's constituent texts.
103
This includes
the rights outlined in the Refugee Convention and its Protocol, as well as Article 47 of the European
Convention on Human Rights. Insofar as the EU Charter's fundamental rights are concerned, they are part
of primary EU law. Article 52(3) of the EU Charter prohibits the institutions and bodies of the EU and the
Member States from reducing the protection provided by the ECHR where the provisions of the EU Charter
and the ECHR are equivalent, although this must not "prevent EU law from providing broader protection".
Regarding eligibility for and granting of refugee status, the provisions of the QD (recast) closely mirror those
of the Refugee Convention. Regarding the Refugee Convention, the CJEU has repeatedly stated that "the
[Refugee Convention] is the cornerstone of the international legal regime for the protection of refugees"
and that the QD aims to guide the authorities of the Member States in applying the Refugee Convention
"on the basis of common concepts and criteria".
104
Similarly, recitals (24) and (25) QD (recast) note that "common criteria" must be introduced for the
recognition of asylum applicants as refugees under Article 1A(2) of the Refugee Convention.
This specifically refers to "protection needs arising on the ground, sources of harm and protection, internal
protection and persecution, including the causes of persecution". In accordance with Article 1A(2) of the
Refugee Convention,
105
Recital (22) indicates that the United Nations High Commissioner for Refugees
(UNHCR) may "provide valuable guidance" regarding the determination of refugee status. The function of
UNHCR is elaborated very important.
106
102
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023, 17.
103
EASO, An Introduction to the Common European Asylum System (CEAS) for Courts and Tribunals – A Judicial Analysis, Section 3, 61-89.
104
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [39]; and CJEU, Joined Cases C-443/14 and C-444/14, Alo and Osso [2016]
ECLI:EU:C:2016:127, [28]. See recital (23) QD (recast).
105
See judgment in case C-528/11, Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet, [2013] EU:C:2013:342, [44] in which the
CJEU has held with regard to UNHCR publications that ‘it should be recalled that documents from the UNHCR are among the instruments likely to enable the
Member States to assess the functioning of the asylum system in the Member State indicated as responsible by the [Dublin II Regulation]’ and that those documents
‘are particularly relevant in that assessment in the light of the role conferred on the UNHCR by the [Refugee Convention]’.
106
EASO, An Introduction to the Common European Asylum System (CEAS) for Courts and Tribunals – A Judicial Analysis, Section 3, 62 and 63.
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18
Article 2(d) QD (recast) defines the term "refugee" as follows:
[…] a third-country national who, owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, political opinion or membership of a particular social group, is
outside the country of nationality and is unable or, owing to such fear, is unwilling to avail
himself or herself of the protection of that country, or a stateless person, who, being outside
of the country of former habitual residence for the same reasons as mentioned above, is unable
or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.
This definition largely corresponds to the definition of the term "refugee" in Article 1A(2) of the Refugee
Convention.
107
The Refugee Convention does not define the term "being persecuted", but EU law provides one in Article
9(1) QD (recast), which states that:
1. To be considered an act of persecution within the meaning of Article 1(A) of the Geneva
[Refugee] Convention, an act must: (a) be sufficiently grave by its nature or repetition to
constitute a severe violation of fundamental human rights, in particular the rights from which
no derogation may be made under Article 15(2) of the [ECHR]; or (b) be an accumulation of
various measures, including violations of human rights, which is sufficiently severe to affect a
person's life, liberty, or security (a).
Thus, the provision makes explicit reference to Article 1A of the Refugee Convention before outlining two
conditions, both of which require an act to be sufficiently grave to constitute persecution and which must
be alternatively met.
108
In fact, the QD is the first international instrument to elaborate on the meaning of "being persecuted"
within the context of Article 1A of the Refugee Convention. Article 1A does not define persecutory acts. It
has been stated that attempts to define persecution had failed due to the impossibility of enumerating in
advance all forms of ill-treatment that could legitimately entitle individuals to the protection of a foreign
state.
109
Consequently, the interpretation of this fundamental term was left up to the State Parties,
resulting in divergent jurisprudence.
110
The Directive aims to remedy this by guiding the competent
authorities of the Member States in the application of the Refugee Convention based on common concepts
and criteria.
111
The criteria of Article 9(1) QD (recast) largely reflect state practice and scholarly efforts to define the term
"being persecuted" in Article 1A of the Refugee Convention. Whether human rights violations or other acts
or accumulation of acts as defined in Article 9(1)QD (recast) constitute persecution must be assessed under
Article 4(3) QD (recast) on an individual basis taking into account all relevant facts as they relate to the
country of nationality or of former habitual residence at the time of taking a decision on the application,
the relevant statements and documentation presented by the applicant, and the individual position of the
applicant.
112
107
According to Art. 1A(2) of the Refugee Convention and its 1967 Protocol.
108
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 27 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
109
UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees, 1979, reissued December 2011.
110
See Guy S. Goodwin-Gill, The Refugee in International Law (2nd edn, OUP 1996) 62; Hugo Storey, ‘Persecution: Towards a Working Definition’, in Vincent
Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar 2014) 462-463.
111
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [39] and [51].
112
See case C-472/13, Andre Lawrence Shepherd v Bundesrepublik Deutschland [2015] EU:C:2015:117 [25].
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The reference to Article 1A(2) of the Refugee Convention makes it clear that Article 9(1) QD (recast)
attempts to define the meaning of persecution (or, more precisely, "being persecuted") within the meaning
of Article 1A(2) (2). In this context, the provision specifies two alternative conditions under which an act
constitutes persecution. The requirement that the act be sufficiently grave or severe to qualify as
persecution is shared by these two alternatives. The threshold of sufficient seriousness may be exceeded
either by the nature of a single act as a severe violation of fundamental human rights, or by the repetition
of such acts that, if committed as a single act, might not yet qualify as severe violations. The distinction
between the second alternative of Article 9(1)(a) (repeated acts) and Article 9(1)(b) (accumulation of
various measures) is that the latter must be sufficiently severe violations of human rights to affect an
individual in a comparable manner.
113
In order to apply Article 9, it is not necessary to make a clear distinction between Article 9(1)(a) and Article
9(1)(b), especially if it is uncertain whether an interference with individual rights constitutes a violation of
"fundamental" human rights.
114
The determining factor of persecution is the severity of an act's impact on a person's rights, not the
attribution of the violated rights to formal rankings.
115
In accordance with this interpretation, the CJEU
does not distinguish sharply between the various forms of persecutory acts described in Article 9(1)(a) and
Article 9(1)(b) (b). The Court refers to the purpose of the Directive being to guide the competent authorities
of Member States in the application of the Refugee Convention
116
and interprets the provisions of Article
9 as a definition of the elements which support the finding that acts constitute persecution within the
meaning of Article 1A of the Refugee Convention.
117
According to Table 6 of Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis
(EASO), the steps for determining whether an act constitutes persecution (Article 9(1)) are:
118
1. Is the act by its nature or repetition, sufficiently serious as to constitute a severe violation of basic human
rights (Article 9(1)(a))?
i) Does a basic human right risk being violated or has it already been violated?
ii) Is the right at issue an absolute right?
If the right is one of those listed in Article 15(2) ECHR as non-derogable, it is automatically considered a
fundamental human right. Other nonderogable rights than those listed in the ECHR might also qualify as
fundamental human rights.
iii) If the right is not non-derogable, is it fundamental and therefore comparable to non-derogable rights?
While no limitation can ever be legitimate for non-derogable rights (Article 15(2) ECHR), for derogable
rights it must be determined whether the alleged violation would be legally justified as a derogation or a
limitation. While a violation of non-derogable rights may be considered severe, a violation of derogable
rights must be of equal severity to non-derogable rights violations.
113
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 27-28 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
114
Idem.
115
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [66].
116
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [39].
117
In the judgment X, Y and Z, the Court stated: ‘It is clear from those provisions that for a violation of fundamental rights to constitute persecution within the
meaning of Article 1(A) of the Geneva [Refugee] Convention, it must be sufficiently serious’ (idem [52]).
118
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 28 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
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vi) If the act is not grave enough by its nature to constitute a serious violation, is it grave enough by its
repetition?
119
If these two cumulative conditions are met, the act must be considered an act of persecution within the
meaning of Article 9(1)(a) and Article 1A of the Refugee Convention. If the act does not satisfy these two
cumulative conditions, it may still constitute persecution if it satisfies the conditions outlined in the second
step (Article 9(1)(b)). Article 9(1)(b): accumulation of various measures, including violations of human
rights, which are sufficiently severe to affect the individual similarly to Article 9(1)(a)? Article 4(3) requires
that the combined effect of the measures be evaluated in light of the applicant's personal circumstances,
taking into account all acts to which the applicant has been or risks being exposed. The term "measures"
encompasses, in a broad sense, all measures that may affect a person in the same manner as a severe
violation of fundamental human rights. The accumulation of multiple measures constitutes persecution
only if it has the same effect on the applicant as a violation under Article 9(1). (a). The decisive factor is the
gravity of an individual's rights violation.
120
Article 9(1)(a) QD (recast) calls for a violation of "fundamental" human rights. This language makes it clear
that only the violation of a subset of human rights constitutes persecution. The QD (recast) does not define
the term "fundamental" human rights, but its provisions shed light on the subject.
Article 9(1)(a) specifically references non-derogable rights under Article 15(2) ECHR. These include the right
to life, freedom from torture, inhuman or degrading treatment or punishment, freedom from slavery and
servitude, and freedom from retroactive criminal liability (Articles 2, 3, 4(1), and 7 of the European
Convention on Human Rights). Consequently, a violation of a non-derogable right under Article 15(2) ECHR
may be regarded as a grave violation of fundamental human rights115.
121
As the provision is worded "in particular", however, the reference to Article 15(2) ECHR is not exhaustive.
Consequently, rights other than non-derogable rights may qualify as "fundamental human rights" under
Article 9(1)(a)116.
122
In 30 and judicial measures that do not normally imply non-derogable rights by
themselves. Therefore, paragraph 1(a) is not limited to the rights listed in Article 15(2) of the European
Convention on Human Rights (ECHR)117.
123
The reference to non-derogable rights seems to imply that
violations of those rights are always persecutive because they are sufficiently severe in and of themselves,
but it does not limit "fundamental human rights" to non-derogable rights.
124
Nevertheless, any expanded
content must pass a comparability test.
Article 9 QD (recast) does not provide criteria or a particular method by which a human right listed in a
human rights instrument or recognised under customary international law can be determined as "basic" in
the sense of Article 9(1)(a) for the purposes of establishing an application for international protection.
Unless the human right at issue is referred to in Article 9(1)(a) as a non-derogable human right under Article
15(2) of the ECHR, a comparability assessment between the human right at issue and the non-derogable
rights under Article 15(2) ECHR is required.
125
In its 2012 Y and Z decision, the CJEU determined that, despite being subject to derogations under the
ECHR, freedom of religion is "one of the pillars of a democratic society and a fundamental human right".
119
Idem.
120
Idem.
121
Anja Klug, ‘Harmonization of Asylum in the European Union – Emergence of an EU Refugee System?’, German Yearbook of International Law (2004) 594
and 602.
122
See Federal Administrative Court (Germany), judgment of 5 March 2009, BVerwG 10 C 51.07, BVerwG:2009:050309U10C51.07.0, in Neue Zeitschrift für
Verwaltungsrecht 2009, 1167, 1168, available in English at www.bverwg.de.
123
Hemme Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers,2006), 234, para. 291.
124
Idem.
125
Reinahrd. Marx, Handbuch zum Flüchtlingsschutz, Erläuterungen zur Qualifikationsrichtlinie (2nd edn, Wolters/Kluwer Law International 2012), 30, para.
27.
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For the Court, this means: [I]nterference with religious freedom may be so grave as to be treated similarly
to the cases referred to in Article 15(2) of the ECHR, to which Article 9(1) of the Directive refers for guidance
in determining which acts must in particular be regarded as persecution.
126
Not every unlawful or unfair treatment involving an enumerated right constitutes persecution.
127
The
accumulation of measures must result in a deprivation of living conditions equivalent to a violation of such
fundamental human rights from which there are no exceptions. In addition, in order to qualify as
persecution, serious violations of economic and social rights must generally be attributable to an actor
128
(see actors of persecution or serious harm under Article 6 QD (recast)).
Article 9(2)(f) QD (recast) echoes the requirements of Article 4(3)(c), under which Member States are
required to take into account: the individual position and personal circumstances of the applicant, including
factors such as background, gender, and age, in order to assess whether, on the basis of the applicant's
personal circumstances, the acts to which the applicant has been or could be exposed would constitute
persecution or serious harm.
Gender-specific acts are persecutory acts that target a specific gender. To comprehend their nature, it is
necessary to define and differentiate the terms "gender" and "sex". Gender refers to the relationship
between women and men based on socially or culturally constructed and defined identities, status, roles,
and responsibilities that are assigned to one sex or another, whereas sex is determined biologically. Gender
is neither fixed nor innate; rather, it is socially and culturally constructed over time. This is evident from
the language of recital (30) QD (recast), which states that "issues arising from an applicant's gender,
including gender identity and sexual orientation, [...] may be associated with certain legal traditions and
customs". Gender identity is a component of gender, whereas sexual orientation is intimately connected
to gender.
129
These two concepts are defined as follows by the 2007 Yogyakarta Principles:
130
1) Sexual orientation is understood to refer to a person's capacity for intense emotional, affectionate, and
sexual attraction to, and intimate and sexual relations with, individuals of a different gender, individuals of
the same gender, or individuals of multiple genders.
131
2) gender identity is understood to refer to each person's deeply felt internal and individual experience of
gender, which may or may not correspond with the sex assigned at birth, including the personal sense of
the body (which, if freely chosen, may involve modification of bodily appearance or function by medical,
surgical, or other means) and other expressions of gender, including dress, speech, and mannerisms.
132
While shedding some light on the concept of gender, the above-quoted recital (30) QD (recast) is not
concerned with gender-specific acts but rather with persecution based on membership in a social group
defined on the basis of gender The distinction between gender-specific acts and gender-based persecution
must be made. In fact, although gender-specific acts of persecution may be perpetrated because of
membership in a particular social group defined by gender, the two are not necessarily linked.
Consequently, gender-specific acts can also constitute acts of persecution based on race, religion,
nationality, political opinion, or membership in a particular social group defined on a basis other than
126
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 30 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
127
James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) 120.
128
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 32 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
129
Idem, 41.
130
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual
orientation and gender identity, March 2007, 6.
131
Idem.
132
See for example Council for Alien Law Litigation (Belgium), decision of 17 October 2012, no 89.927 (see EDAL English summary); Migration Court of
Appeal (Sweden), judgment of 12 October 2012, UM 1173-12 (see EDAL English summary).
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22
gender. Conversely, gender-based persecution may be the result of acts not specific to a certain gender.
This can be the case for a transgender woman who is discriminated against so severely in her social,
economic,
133
or religious sphere that it becomes intolerable for her to remain in her country of origin.
The QD (recast), like the Refugee Convention on which it is based, provides refugee protection only to
those who fear persecution "on account of their race, religion, nationality, political opinion, or membership
in a particular social group" (Article 2(d) QD (recast)).
134
As stated in Recital (29) QD (recast), these causes
of persecution must be related to the acts of persecution or the lack of protection against such acts in
accordance with the Refugee Convention. One of the requirements for refugee status under Article 1(A) of
the Geneva [Refugee] Convention is the existence of a causal link between the causes of persecution,
namely race, religion, nationality, political opinion, or membership in a particular social group, and the acts
of persecution or the absence of protection against such acts.
The connection clarifies that acts of persecution in and of themselves do not qualify a person as a refugee
unless they were committed for one of the reasons for persecution. In order to establish the necessary
causal link, it is not necessary for an act to be solely motivated by one of the five reasons. In addition to
motives based on race, religion, nationality, membership in a particular social group, or political opinion,
there may be additional reasons for a persecutor's actions.
135
How should the existence of a persecuting motive be determined? A claimant may be unable to
demonstrate subjective persecutory intentions on the part of the persecutor, particularly when
persecution occurs as part of a general policy of discrimination that clearly falls within the scope of Article
9(3). Either the subjective motivation of the persecutor or the objective impact of the measure in
question
136
can demonstrate the causal link between an act or measures and their persecutory effects. As
specified in Article 10(2) QD (recast), the focus must be on the persecutor's actions.
When determining whether an applicant has a well-founded fear of persecution, it is irrelevant whether
the applicant actually possesses the racial, religious, national, social, or political characteristic that attracts
the persecution,
137
so long as the actor of persecution attributes such a characteristic to the applicant.
The absence of state protection against persecution indicates that the State is unwilling and/or unable to
provide effective, durable, and accessible protection to the applicant.
138
As is evident from the wording of Article 10(1)(d) QD (recast), a particular social group is defined by two
elements: i) An innate shared characteristic or common background that cannot be changed, or a shared
characteristic or belief that is so fundamental to identity or conscience that a person should not be forced
to renounce it; and ii) a distinct identity based on the perception of being different by the surrounding
society.
Article 10(1)(d) uses the conjunctive "and" to indicate that both requirements are required under EU law.
In 2006, the House of Lords of the United Kingdom expressed concern that requiring both requirements
"proposes a more stringent test than is justified by international authority".
139
Nonetheless, the CJEU
stated in 2013 that these two conditions must both be met, although there has not yet been a preliminary
133
As entailed by the Asylum Court (Austria), judgment of 29 January 2013, E1 432053-1/2013 (see EDAL English translation).
134
See also Art. 1A(2) of the Refugee Convention. The same wording is used in Art. 2(c) QD.
135
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 44 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
136
Federal Constitutional Court (Germany), judgment of 10 July 1989, 2 BvR 502/86, Volume 80, 315, 335.
137
Idem.
138
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 45 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
139
House of Lords (UK), Secretary of State for the Home Department v K; Fornah v Secretary of State for the Home Department [2006] UKHL 46 [16].
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23
ruling that hinges on this point.
140
Although UNHCR's opinion is non-binding, UNHCR has long argued that
the case-law of common law countries can be broken down into two approaches: "protected
characteristics" and "social perception", and that it is necessary to reconcile the two in order to ensure that
the Refugee Convention provides comprehensive and principled protection.
141
UNHCR's proposed
synthesis of the two is as follows: [A] particular social group is a group of people who share a characteristic
other than their risk of being persecuted, or who are perceived by society as a group. Typically, the
characteristic will be one that is innate, immutable, or fundamental to identity, conscience, or the exercise
of human rights.
142
The "distinct identity" may be demonstrated by discrimination. According to the UK House of Lords, the
concept of discrimination in matters affecting fundamental rights and freedoms is fundamental to
comprehending the Convention. It is not concerned with all instances of persecution, even if they involve
denials of human rights, but with discriminatory persecution. And in the context of a human rights
instrument, discrimination refers to making distinctions that are incompatible with the right of every
human being to equal treatment and respect, according to the principles of fundamental human rights. [...]
In choosing to use the general term "particular social group" as opposed to an enumeration of specific
social groups, the framers of the Convention were, in my opinion, intending to include all groups that may
be viewed as falling within the anti-discrimination objectives of the Convention.
143
Unlike innate/shared characteristics or beliefs or a common background, the distinct identity of a social
group refers to how the surrounding society perceives the group to be distinct. This is the case, for example,
with victims of human trafficking, who, according to the French Conseil d’état (Council of State), "may be
perceived by the surrounding society or institutions as belonging to a social group within the meaning of
the [Refugee] Convention".
144
Nonetheless, as ruled by the CJEU, the existence of laws that stigmatize a particular class of individuals may
indicate that they are recognized and targeted by a particular society: "[T]he existence of criminal laws [...]
which specifically target homosexuals supports a finding that those persons form a separate group that is
perceived by the surrounding society as different".
145
Regarding sexual orientation and gender identity, recital (30) QD (recast) exemplifies an aspect of the
definition of a particular social group based on the following criteria: For the purposes of defining a
particular social group, issues arising from a person's gender, including gender identity and sexual
orientation, which may be related to certain legal traditions and customs, such as those resulting in genital
mutilation, forced sterilisation, or forced abortion, should be given due consideration insofar as they relate
to the applicant's well-founded fear of persecution.
146
The revised QD expressly recognizes that sexual orientation may be a common trait.
147
The CJEU has
accepted that a person's sexual orientation is so fundamental to his identity that he should not be required
to renounce it [...] it is important to state that requiring members of a social group sharing the same sexual
140
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [45].
141
UNHCR, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within the Context of Article 1A(2) of the 1951 Convention
and/or the 1967 Protocol relating to the Status of Refugees, 7 May 2002, UN Doc HCR/GIP/02/02. Another important report is Michelle Foster, ‘The “Ground
with the Least Clarity”: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’, UNHCR Legal and
Protection Policy Research Series, 2 012.
142
UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 2: "Membership of a Particular Social Group" Within the Context
of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, para. 11.
143
House of Lords (UK), Islam v Secretary of State for the Home Department Immigration Appeal Tribunal and Another, ex parte Shah, [1999] UKHL 20; [1999]
Imm AR 283.
144
Council of State (France), judgment of 25 July 2013, application no 350661,[5] (see EDAL for English summary).
145
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [48] and [49].
146
Art. 10 QD (recast) does include a group ‘based on a common characteristic of sexual orientation’.
147
Art. 10(1)(d) QD: ‘Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic
of sexual orientation’.
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orientation to conceal that orientation is incompatible with the recognition of a characteristic so
fundamental to a person's identity that the persons concerned cannot be required to renounce it.
148
Individuals are not expected to accept any limitations on their conduct, with the exception of claims
triggered by sexual conduct that would invite criminal sanction among Member States. The CJEU has stated
that, just as Article 10(1)(b) protects the public and private spheres with regard to religion, "nothing in the
wording of Article 10(1)(d) suggests that the European Union legislature intended to exclude from the
scope of that provision certain other acts or expressions linked to sexual orientation".
149
The prohibition on refugee claims based on sexual orientation that would be deemed criminal in Member
States has been strictly interpreted. However, as stated in X, Y, and Z, this provision should not be
interpreted so as to exclude from the protection
150
other types of acts or expressions related to sexual
orientation.
The phrase "well-founded fear" indicates that the applicant's fear of persecution must have a valid
objective basis.
151
This element of the refugee definition relates to the possibility or risk of persecution.
The fear is considered well-founded if there is a "reasonable" possibility that it will occur in the future.
152
In order to make this determination, it is necessary to evaluate the applicant's statements in light of all the
relevant circumstances of the case (Article 4(3) QD (recast)) and to review the conditions prevailing in the
applicant's country of origin and the behavior of persecutors.
153
Establishing a well-founded fear is
therefore closely related to the task of evaluating evidence and credibility, which is primarily governed by
Article 4 QD (recast). Evaluation of evidence, including evaluation of its credibility, is the first step. If the
applicant's evidence is deemed credible, the next step for the decision-maker is to determine whether the
accepted facts and circumstances constitute a well-founded fear. This two-step strategy was sanctioned by
the CJEU:
In actuality, this "assessment" consists of two distinct phases. The first stage involves the establishment of
factual circumstances that may serve as evidence in support of the application, while the second stage
involves the legal evaluation of that evidence, which entails determining whether, in light of the specific
facts of a given case, the substantive conditions outlined in Articles 9 and 10 or Article 15 of Directive
2004/83 for the grant of international protection have been met.
154
Similar to the Refugee Convention, the QD (recast) does not define the phrase "well-founded fear". Neither
does it specify the applicable burden of proof. The definition of "refugee" in Article 2(d) QD (recast) closely
follows the Refugee Convention definition
155
and refers, in particular, to a third-country national who is
outside the country of his/her nationality "due to a well-founded fear of being persecuted" for reasons of
race, religion, nationality, political opinion or membership in a particular social group and is unable or, "due
to such fear", unwilling to avail their state's protection.
According to the CJEU, in order to meet the aforementioned definition, [the applicant must] have a well-
founded fear that he will be persecuted for at least one of the five reasons listed in the [Qualification]
148
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720, [46] and [70].
149
Idem, [67]. See further Tribunal Supremo (Supreme Court, Spain), judgment of 21 September 2012, 65/2012, ECLI:ES:TS:2012:5907; and Supreme Court
(Spain), judgment of 21 September 2012, 75/2012, ECLI:ES:TS:2012:5908.
150
Idem, [66].
151
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 80 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
152
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [51]; Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720,
[43]; See also C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105.
153
Idem.
154
Case C-277/11, MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General, EU:C:2012:744, [64].
155
See Art. 1A(2) of the Refugee Convention.
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25
Directive and the [Refugee] Convention,
156
based on circumstances in his country of origin and the conduct
of persecutors. Providing evidence of the aforementioned conditions "will demonstrate that the third
country does not protect its nationals from acts of persecution"
157
and that these circumstances are the
reason why it is impossible for the applicant, or he justifiably refuses, to avail himself of the "protection"
of his country of origin within the meaning of [Article 2(d) Recast], that is, in terms of that country's ability
to prevent or punish acts of persecution.
158
In addition to the definition of "refugee" specified in Article 2(d) of the QD (recast), two other provisions
of the QD (recast) are crucial for understanding the concept of "well-founded fear": Recital (36) QD (recast)
addresses the well-founded fear of a refugee's family members, while Article 4(4) QD (recast) clarifies the
significance of past persecution. Article 4(4) QD (recast) relates to both refugee status and subsidiary
protection, whereas Article 2(d) and Recital (36) QD (recast) only apply to applicants for refugee status. In
particular in Y and Z,
159
Abdulla,
160
and X, Y, and Z,
161
the CJEU provided additional guidance on the concept
of well-founded fear.
The QD (recast) does not state whether "well-founded fear" includes both a subjective and an objective
component. The CJEU has not addressed it explicitly either. However, the fact that the relevant CJEU
judgments discussing the concept of "well-founded fear" do not mention the subjective element would
seem to indicate that, according to the CJEU, the assessment of well-founded fear does not require an
evaluation of the applicant's mental state, and that the objective test alone is sufficient.
162
In other words,
the CJEU does not appear to require the subjective element in addition to the objective element.
In assessing whether the applicant's acts in her country of origin "will give rise to a genuine risk that
[he/she] will be persecuted",
163
application of the objective test requires careful consideration of matters
that may be unique to the individual concerned, including his/her beliefs and commitments. In other words,
the personal characteristics and circumstances of the applicant should be considered when determining
the level of risk to which he or she will be exposed in the country of origin. In Y and Z, the CJEU ruled: "The
subjective circumstance that the observance of a certain religious practice in public [...] is of particular
importance to the person concerned in order to preserve his religious identity is a relevant factor to be
taken into account in determining the level of risk to which the applicant will be exposed in his country of
origin on the basis of his religion, even if the observance of such a religious practice does not constitute a
core edict of the religion".
164
The QD (recast) does not specify the level of proof necessary for a fear to be deemed "well-founded".
Nonetheless, the CJEU clarified in its Y and Z judgment that when determining whether an applicant has a
well-founded fear of being persecuted, the competent authorities are required: in the system established
by the [QD] [...] to determine whether or not the established circumstances constitute such a threat that
the person concerned may reasonably fear, in light of his individual situation, that he will be subject to acts
of persecution.
165
156
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [51]; Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720
[43]. See also the CJEU’s earlier formulation in Joined cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105 [57].
157
Joined cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105 [58].
158
Idem [59] See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [66].
159
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518.
160
Joined cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105.
161
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720.
162
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [69]; Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720; Joined
cases C-175/08, C-176/08, C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105 [58].
163
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [69].
164
Idem, [70].
165
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518, [76]; C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105 [72].
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The "reasonable fear" test of the CJEU is consistent with the tests for evaluating well-founded fear
developed by the national courts and tribunals of Member States. For the German
Bundesverwaltungsgericht (Federal Administrative Court), the fear of persecution is well-founded if, in light
of the third-country national's individual circumstances, he or she is in fact threatened, i.e. with a high
probability or real risk, with persecution within the meaning of Article 2(d) due to the conditions in his or
her country of origin.
166
It would appear that 83 is well-founded if there is a "real and substantial risk" or a
"reasonable degree of likelihood" of persecution for a Convention reason.
167
Despite this language, the
same Court makes clear that this standard is lower than one that requires more than 50 percent.
Importantly, all of these tests indicate that the dread is justified, despite the probability of persecution
being less than fifty percent. Similarly, the European Court of Human Rights held in Saadi v. Italy, in the
context of Article 3 ECHR, that the applicant is not required to "prove that ill-treatment is more likely than
not".
168
The "reasonable fear" test therefore means that, while a mere chance or remote possibility of
being persecuted is insufficient risk to establish a well-founded fear, the applicant is not required to
demonstrate that there is a greater than 50 percent chance that he or she will be persecuted.
169
The term "fear" reflects the prospective nature of the Refugee Convention and the QD refugee definitions.
The QD (recast) protects not only those who have been persecuted but also those who are at risk of "being
persecuted".
170
In addition, it demonstrates an acceptance that the mere threat of persecution is sufficient
to constitute persecution. Therefore, a person does not have to wait until they have been persecuted
before applying for international protection; they may be "in fear of" future persecution instead.
In Y and Z, the CJEU emphasized the prospective nature of the well-founded fear, holding that: [W]hen
assessing whether, in accordance with Article 2(c) thereof, an applicant has a well-founded fear of being
persecuted, the competent authorities are required to ascertain whether or not the circumstances
established constitute such a threat that the person concerned may reasonably fear, in light of his
individual situation, that he will in fact be subject to act(s) of persecution.
171
It also emphasized that the "assessment of the extent of the risk must, in all cases, be conducted with
vigilance and care"
172
and must be based solely on "a specific evaluation of the facts and circumstances, in
accordance with the rules established in particular by Article 4".
173
In a similar vein, but without using the
language of vigilance and care, the ECtHR states that the existence of a real risk of a violation of Article 3
of the ECHR must necessitate a rigorous approach.
174
The applicant's history of persecution is a key factor in assessing their current risk of persecution. The
significance of past persecution is addressed in Article 4(4) QD (recast), which states: The fact that a person
has been subject to persecution or serious harm, or to direct threats of such persecution or harm, is a
serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm,
unless there are good reasons to believe that such persecution or harm will not be repeated.
175
166
Federal Administrative Court (Germany), BVerwG 10 C 23.12, [19], available in English at www.bverwg.de.
167
RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 [55].
168
Saadi v Italy App no 37201/06 (ECHR, 28 February 2008) [140].
169
See EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office,
2018, https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
170
See Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518, [74] and [75]; and ]; Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013]
ECLI:EU:C:2013:720, [63] and [64]. See also UNHCR Handbook, para. 45.
171
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [76]. See also C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105
[89].; and ]; Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720 [72].
172
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [77]. See also C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105
[73].
173
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [77].
174
Chahal v the United Kingdom App no 22414/93 (ECHR, 15 November 1996) [96]; Saadi v Italy App no 37201/06 (ECHR, 28 February 2008) [129].
175
Emphasis added.
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Importantly, past persecution, as defined by Article 4(4) QD (recast), encompasses both acts and threats of
persecution.
176
Therefore, both prior acts and threats of persecution constitute "evidence of the validity of
[applicant's] fear that the persecution in question will recur if he returns to his country of origin".
177
In
accordance with Article 4(4) QD, if the applicant has already been persecuted or directly threatened with
persecution, this constitutes a "serious indication of well-founded fear".
178
This means that past
persecution is not required, but evidence of past persecution is a strong indicator of the applicant's well-
founded fear of persecution, unless there are compelling reasons to believe that such persecution will not
be repeated.
179
As is logically implied by Article 5(1)QD (recast), which deals with international protection claims sur place,
a claimant who was neither persecuted nor directly threatened with persecution prior to departure from
his or her country of origin may establish by other evidence a well-founded fear of being persecuted in the
foreseeable future. The acceptance of sur place claims clarifies that, in assessing the significance of past
persecution, it is necessary to distinguish between applicants who fled persecution and still have a current
well-founded fear of persecution and those who left their country of origin and only acquired a well-
founded fear of persecution after leaving.
180
In addition, it must be considered that an applicant may have
suffered harm in the past, which did not amount to persecution, but which is nonetheless relevant evidence
when evaluating a well-grounded fear of future persecution.
The issue of discretion is not addressed in either the Refugee Convention or the QD (recast), but it has
gained prominence as a result of applications for refugee status based on a fear of religious or sexual
persecution. The term refers to the erroneous belief that applicants may be expected to conceal activities
that could lead to their being persecuted, thereby justifying the denial of refugee status. In other words, it
has been asserted, erroneously, that applicants' fears are no longer justified if they can avoid persecution
by concealing their activities.
181
In the Y and Z and X, Y, and Z judgments, the CJEU denied the existence of such an obligation to exercise
discretion. In Y and Z, the CJEU was asked whether a person's fear of persecution is well-founded if he or
she can "avoid exposure to persecution [...] by abstaining from certain religious practices" without being
required to give up religious practice entirely.
182
The CJEU was subsequently asked a similar question in the
joined cases of X, Y, and Z, namely whether the applicant can be expected to avoid persecution by
"concealing his homosexuality [from everyone in his home country] [...] or refraining from expressing it",
183
where it took a similar approach.
As stated by the CJEU, it is important to consider the significance of a particular practice to the applicant
when determining the level of risk to which he or she would be exposed in the country of origin.
184
The subjective circumstance that the observance of a certain religious practice in public, which is subject
to the restrictions at issue, is of particular importance to the person concerned in order to preserve his
religious identity is a relevant factor to be considered in determining the level of risk to which the applicant
176
See C-178/08 and C-179/08 Abdulla and Others [2010] ECLI:EU:C:2010:105, [94], [96] and [97].
177
Idem [94]. See also Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720 [64].
178
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [75].; and Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720
[64].
179
European Union: European Asylum Support Office (EASO), Qualification for International Protection (Directive 2011/95/EU): A Judicial Analysis, December
2016, 84 https://www.refworld.org/docid/5a65c4334.html accessed 5 January 2023.
180
Idem, 86.
181
Idem, 85.
182
Joined Cases C‑199/12 to C‑201/12, X, Y and Z [2013] ECLI:EU:C:2013:720 [65].
183
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [78]-[80].
184
Idem, [70].
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will be exposed in his country of origin on account of his religion, even if the observance of such a religious
practice does not constitute an act of discrimination.
185
In addition, when determining whether an applicant has a well-founded fear of being persecuted, "the
competent authorities are required to determine whether or not the established circumstances constitute
such a threat that the person concerned may reasonably fear, in light of his individual situation, that he will
be subject to acts of persecution".
186
The German Federal Administrative Court (Bundesverwaltungsgericht) applied the CJEU judgment in Y and
Z in domestic proceedings in accordance with the principle that no deference or discretion can be
expected.
187
By analogy, the aforementioned conclusions from the Y and Z and X, Y, and Z judgments also
apply to political opinion.
The ECtHR has also addressed the concept of sur place in the context of interpreting Article 3 of the
European Convention on Human Rights. In SF v Sweden,
188
AA v Switzerland,
189
HS and Others v Cyprus,
190
and FG v Sweden,
191
the ECtHR considered both "continuation" and "brand new" sur place activities in the
context of Article 3 ECHR. In addition, it emphasized that:
Concerning sur place activities [...] it is generally difficult to determine if a person is genuinely
interested in the activity in question, be it a political cause or a religion, or if he or she is only
involved in it to create post-flight ground.
192
The abovementioned four ECtHR's judgments operate as persuasive arguments in interpreting the
concepts of refugee sur place. However, the use of this Strasbourg case-law in the QD context should be
approached with caution, since the ECtHR interprets neither the Refugee Convention nor the QD (recast),
but is rather considering whether manufactured activities can expose an applicant to ill-treatment contrary
to Article 3 ECHR.
193
In addition, due to the absolute character of Article 3 ECHR, the distinction between
"good faith" and "bad faith" is never decisive for the ECtHR.
194
Further, the SF, AA and FG judgments deal
with protection from refoulement, whereas Article 5(3) QD (recast) provides a ground for denial of refugee
status (which are two different things).
195
According to recital (21) QD recast, the recognition of refugee status is a declaratory act. The declaratory
nature of refugee status is also implied in Article 21(2) QD (recast) which suggests that protection from
refoulement, in accordance with international obligations, applies whether a refugee has been formally
recognised or not. As stated by UNHCR: A person is a refugee within the meaning of the 1951 Convention
as soon as he fulfils the criteria contained in the definition. This must occur before the official
determination of his refugee status. Therefore, recognizing his refugee status does not make him a refugee,
but rather declares him to be one. He does not become a refugee because of recognition, but is recognized
because he is a refugee.
196
185
Idem.
186
Idem, [76].
187
Federal Administrative Court (Germany), BVerwG 10 C 23.12, op. cit., fn. 170, para. 27, available in English at www.bverwg.de.
188
SF v Sweden App no 52077/10 (ECtHR, 15 May 2012), [62]-[71].
189
AA v Switzerland App no 58802/12 (ECtHR, 7 January 2014, [38]-[43].
190
HS and Others v Cyprus App no 41753/10 and 13 other applications (ECtHR, 21 July 2015), [277].
191
FG v Sweden Application no 43611/11 (ECtHR, 29 March 2016), [123] and [144]-[158].
192
Idem, [123] (internal references omitted).
193
Furthermore, it is not clear that the ECtHR attaches significance to the issue of whether the sur place activities are manufactured or not.
194
See FG v Sweden Application no 43611/11 (ECtHR, 29 March 2016) [156].
195
See also idem, [125]-[127].
196
UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, para. 28 states that: ‘A person is a refugee within
the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee
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As such, there are procedural guarantees of access to certain limited rights in advance of any formal
recognition of status. The APD (recast) provides for a right to stay pending a decision by the determining
authority in its Article 9 and recital (25). Article 46(5) APD (recast) stipulates that Member States shall allow
applicants to remain in the territory until the outcome of the remedy.
197
Finally, the recast Reception
Conditions Directive 2013/33/EU provides for social rights for applicants for international protection. One
situation where recital (21) may have practical relevance is when refugee status or a residence permit is
revoked.
198
The EU legal framework governing evidence and credibility assessment is limited. EU primary law contains
certain general principles and rights that have an impact on evidence and credibility evaluation (21).
199
EU
secondary law provides more specific standards for evaluating evidence and credibility (22).
200
The CJEU
has developed a few additional principles, but these are also relatively few in number.
In FG v. Sweden, although only concerned with the application of the ECHR, the ECtHR seeks to establish
operational guidelines for national authorities and courts in this regard. The ECtHR suggests that if the
contracting state is made aware of facts relating to a specific individual that could expose him or her to a
real risk of ill-treatment, the authorities must independently assess that risk. According to the ECtHR, "[t]his
applies in particular where the national authorities have been informed that the asylum seeker may
plausibly be a member of a group systematically exposed to a practice of ill-treatment and there are serious
reasons to believe in the existence of the practice in question and in his or her membership in the group
concerned".
201
The obligation to substantiate the application does not require the applicant to provide documentary or
other evidence in support of every relevant fact asserted. This is made clear not only by the qualification
that the duty to substantiate extends only to "documentation at the applicant's disposal" (Article 4(2) QD
(recast)), but most importantly by Article 4(5) QD (recast). Article 4.5) applies "where Member States apply
the principle according to which it is the responsibility of the applicant to substantiate the application" and
stipulates that "aspects of the applicant's statements, which are not supported by documentary or other
evidence, shall not require confirmation" if certain conditions are met. Consequently, it provides
exemptions from (or relaxations of) the requirement to present documentary or other evidence supporting
the applicant's statements. This is in recognition of the fact that there may be little documentary or other
evidence to support an applicant's statements, and that some asserted facts are difficult to support with
documentary or other evidence. In addition, it acknowledges that, for instance, the applicant's or the
country of origin's circumstances may make it impossible to obtain relevant documentary or other
evidence. However, in accordance with Article 4.5) QD (recast), the applicant must provide a satisfactory
explanation for the absence of relevant documentary or other evidence.
202
Concerning the obligation to cooperate with the applicant, the CJEU stated in MM that, pursuant to Article
4(1), "although it is generally the applicant's responsibility to submit all elements necessary to substantiate
the application, it remains the Member State's obligation to cooperate with the applicant at the stage of
status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee
because of recognition, but is recognized because he is a refugee’.
197
However, the right to suspensive effect is not absolute. See C239/14, Abdoulaye Amadou Tall v Centre public d’action sociale de Huy [2015] EU:C:2015:824.
198
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international
protection (recast) [2013] OJ L 180/96./
199
See EASO, An introduction to the Common European Asylum System for courts and tribunals — A judicial analysis, August 2016, op. cit., fn. 3, Part 2.
200
The legal basis for the creation of secondary legislation is derived from Art. 78 Treaty on the Functioning of the European Union (TFEU); consolidated version
as amended by the Lisbon Treaty (entry into force: 1 December 2009): in [2012] OJ C 326/47).
201
FG v Sweden Application no 43611/11 (ECtHR, 29 March 2016) [126]-[127] and [150]-[157]. See also, Request for a preliminary ruling from the
Administrativen sad Sofia-grad (Bulgaria) lodged on 18 November 2016, Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite, case C-
585/16 (2017/C 046/17).
202
EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office, 2018,
43 https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
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determining the relevant elements of that application".
203
In A, B, and C, the CJEU reiterated that, despite
the fact that the applicant is in the best position to provide evidence to establish his own sexual orientation,
it remains the Member State's obligation to cooperate with the applicant at the stage of assessing the
relevant elements of the application.
204
As it cannot be assumed that the applicant knows what facts and
documentary or other evidence may be relevant, in accordance with this obligation to cooperate, the
Member State should provide the applicant with appropriate guidance and use appropriate questioning
during the personal interview to elicit any relevant elements.
205
In addition, the CJEU stated in MM: This obligation to cooperate implies, in practice, that if, for whatever
reason, the elements provided by an applicant for international protection are not complete, up-to-date,
or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at
that stage of the procedure, so that all the elements required to support the application can be
assembled.
206
In this regard, the CJEU noted in MM that "a Member State may also be in a better position
than a requester to gain access to certain types of documents" (111). As stated by the Court:
[This] interpretation […] finds support in Article 8(2)(b) [APD (now Article 10(3)(b) APD
(recast))], pursuant to which Member States are to ensure that precise and up-to-date
information is obtained on the general situation prevailing in the countries of origin of
applicants for asylum and, where necessary, in countries through which they have transited.
207
The fact that an applicant has told lies or even extensive lies does not indicate that they are material or
determinative of the application's outcome without additional evidence that the applicant's claim is false.
The obligation of the decision-maker is to respect the international obligations of the Member States
towards people who actually qualify for refugee protection under the Refugee Convention, regardless of
how much lying or acting in bad faith may have helped their case.
208
In MA (Somalia),
209
the Supreme Court of the United Kingdom considered the impact of false statements
made in support of an application for international protection. It was stated that a lie may have a significant
impact on the issue at hand, or the decision-maker may view it as "of little consequence", but "everything
depends on the facts". Therefore, the significance of lies will vary from case to case, as ruled by the court.
In some instances, the [decision-maker] may conclude that a lie has little impact. In other situations, if the
[applicant] lies about a crucial aspect of the case, the [decision-maker] may conclude that the lies are of
great importance. The appeal of MA was such a case. The central question was whether MA had close ties
to influential actors in Mogadishu. The [decider] discovered that he had lied about his connections to
Mogadishu. In such a situation, general evidence about the country may become especially crucial. The
[decision-maker] must determine whether the overall evidence is sufficient to counteract what we have
termed the "negative pull" of the [applicant's] lies.
210
In a case in which the determining authority had withdrawn international protection from a third-country
national after establishing that he had lied about his identity and his reasons for applying for international
protection, but his status was reinstated by the National Asylum Court on appeal, the French Conseil d’état
203
MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General [2012] ECLI:EU:C:2012:744 [65].
204
Joined cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie [2014] ECLI:EU:C:2014:2406 [56].
205
EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office, 2018,
47 https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
206
MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General [2012] ECLI:EU:C:2012:744 [66].
207
Idem.
208
GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833, [29]-[31]. See also High Court (Ireland);
A v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform [2012] IEHC 480, [13]-[20].
209
MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49.
210
Idem, [33].
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(Council of State) ruled that once his identity was established, the National Asylum Court must consider all
relevant points of fact and law and determine whether or not he is eligible for international protection.
211
Article 4(5) QD (recast) specifies the conditions that must be met when Member States apply the principle
that it is the responsibility of the applicant to substantiate the application for international protection and
when certain aspects of the applicant's statements are not corroborated by documentary or other
evidence. In such instances, "those aspects shall not require confirmation" if the conditions outlined in
subparagraphs (a) through (e) are met.
212
In a number of Member States, questions concerning the confirmation of aspects of a candidate's
statements are addressed by reference to the principle or rule of the benefit of the doubt.
213
In this regard,
it should be noted that the Dutch language version of Article 4(5) QD (recast) actually reads "shall [...] be
given the benefit of the doubt" rather than "those aspects shall not require confirmation". As established
by the CJEU, the various language versions of EU legislation are all equally authoritative
214
and "must be
given a uniform interpretation; accordingly, in the event of divergence between the versions, the provision
in question must be interpreted by reference to the purpose and general scheme of the rules of which it is
a part".
215
Additionally, the ECtHR notes that it is frequently necessary to give applicants the benefit of the doubt.
216
For instance, in JK and Others v. Sweden, the Court ruled that:
Owing to the special situation in which asylum seekers often find themselves, it is frequently
necessary to give them the benefit of the doubt when assessing the credibility of their
statements and the documents submitted in support thereof. Yet when information is
presented which gives strong reasons to question the veracity of an asylum seeker's
submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies
in those submissions. […] Even if the applicant's account of some details may appear somewhat
implausible, the Court has considered that this does not necessarily detract from the overall
general credibility of the applicant's claim […].
217
The ECtHR's reference to the benefit of the doubt appears to be based on the view of the UNHCR set out
in its Handbook that "if the applicant's account appears credible, he should, unless there are good reasons
to the contrary, be given the benefit of the doubt".
218
In fact, the European Court of Human Rights stated
that both the UNHCR standards and Article 4(5) QD (recast) "recognize, explicitly or implicitly, that the
benefit of the doubt should be accorded to an individual seeking international protection".
219
Internal consistency concerns findings regarding consistency, and any inconsistencies, discrepancies or
omissions, in the statements and other evidence presented by applicants in their written communications
and interviews, at all stages of processing their application and appeal until final disposal. The focus here
is on how well a candidate's account or story flows together.
220
211
OFPRA c M B App no 389733 B (Council of State (France), 28 November 2016).
212
EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office, 2018,
78 https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
213
See i.e.. Supreme Administrative Court (Czech Republic), SN v Ministry of Interior, 5 Azs 66/2008-70.
214
Case C-283/81, Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] EU:C:1982:335, [18].
215
Case 30/77, Regina v Pierre Bouchereau [1977] EU:C1977:172, [14].
216
JK and Others v Sweden App no 59166/12 (ECHR, 23 August 2016). See also, RH v Sweden App no 4601/14 (ECtHR, 10 September 2015) [58]; N v Sweden
App no 23505/09 (ECtHR, 20 July 2010) [53]; RC v Sweden App no 41827/07 (ECtHR, 9 March 2010) [50].
217
JK and Others v Sweden App no 59166/12 (ECHR, 23 August 2016) [93].
218
UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, para. 196. See also paras. 203 and 204.
219
JK and Others v Sweden App no 59166/12 (ECHR, 23 August 2016) [97].
220
EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office, 2018,
85 https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
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Consistent with national case law, the ECtHR has stated that an applicant's basic story should be consistent
throughout the proceedings, even if some details are uncertain or "somewhat remarkable", so long as they
do not undermine the claim's overall credibility.
221
In assessing the general credibility of the statements,
the Court has also stated that exact dates and times cannot be assumed.
222
A point may nevertheless be
reached, even taking into account the need to give applicants the benefit of the doubt when assessing their
evidence, that information presented gives strong reasons to question the veracity of the submissions. In
such situations, the applicant must provide an acceptable explanation for the alleged discrepancies.
223
External consistency refers to the consistency between the applicant's account (given during the personal
interview and/or in other statements) and generally known information, other evidence such as evidence
from family or other witnesses, medical and documentary evidence relating to issues relevant to the claim,
COI, and any other relevant country evidence.
224
The importance of considering the consistency of the
applicant's statements with such evidence is explicit from the inclusion in Article 4(5)(c) QD (recast) of a
requirement that "the applicant's statements […] do not run counter to available specific and general
information […]".
225
Consequently, the applicant's statements should not contradict external evidence such as COI, medical, or
other documents. In general, it is reasonable to expect that a claim for international protection will be
adequately presented and detailed, at least with regard to the most material facts of the claim. Insufficient
detail may also constitute a lack of "relevant elements" as defined by Article 4(5)(b) QD (recast).
226
If an applicant claims to have been arrested at a demonstration for the first time in his or her life, it would
be surprising if no specific details can be provided regarding when, where, how, etc. However, this raises
the question of how much detail can be reasonably expected. In each case, a balanced and objective
evaluation is required to determine whether the applicant's account accurately reflects what can be
expected from someone in the applicant's specific circumstances who is relating a genuine personal
experience.
227
This will involve considering the applicant's individual characteristics, such as education and
background, which may or may not explain why he/she is unable to provide such detail.
228
As previously mentioned, Article 4(5)(c) QD (recast) identifies plausibility as one of the conditions required
to exempt a candidate from confirming his or her statements (see Section 4.3.7.3). In Shepherd, in the
context of a claimant seeking refugee status under Article 9(2)(e) QD, the CJEU referred to the necessity of
establishing the facts relied upon "with sufficient plausibility".
229
Although the CJEU has not yet interpreted
the term "plausible", it is evident that its scope is narrower than that of "credibility", since an account may
be plausible but not credible. Its meaning appears to partially overlap with the phrase "not running counter
to available specific and general information" in Article 4(5)(c) QD (recast). However, "plausible" cannot
simply be a synonym, as it would have no specific application otherwise. According to UNHCR, "plausibility
refers to what appears reasonable, likely, or probable" (emphasis added).
230
In HK v. Secretary of State, the English and Welsh Court of Appeal (EWCA) stated:
221
Said v the Netherlands App no 2345/02 (ECHR, 5 July 2005), [53], where the Court said that even if the account of his escape might appear somewhat
remarkable, the Court considered that it did not reject the overall credibility of the applicant’s claim that he was a deserter.
222
See i.e., idem; Bello v Sweden App no 32213/04 (ECtHR, 17 January 2006).
223
JK and Others v Sweden App no 59166/12 (ECHR, 23 August 2016) [93]; and RH v Sweden App no 4601/14 (ECHR, 10 September 2015), [58].
224
See i.e., Tekdemir v the Netherlands App nos 46860/99 and 49823/99 (ECtHR, 1 October 2002); M. T, no 15037987
(National Asylum Court (France), 25 January 2017).
225
EASO, Evidence and Credibility Assessment in the Context of the Common European Asylum System (CEAS) – A Judicial Analysis, Publications Office,
2018, 86 https://data.europa.eu/doi/10.2847/64928 accessed 8 January 2023.
226
Idem, 87.
227
Idem, 87.
228
Idem 87.
229
Case C-472/13 Andre Lawrence Shepherd v Bundesrepublik Deutschland [2015] ECLI:EU:C:2015:117, [43].
230
UN High Commissioner for Refugees (UNHCR), Beyond Proof, Credibility Assessment in EU Asylum Systems, May 2013, 60.
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[…] in many asylum cases, some, even most, of the appellant's story may seem inherently
unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as
a whole, have to be considered against the available country evidence and reliable expert
evidence, and other familiar factors, such as consistency with what the appellant has said
before, and with other factual evidence (where there is any).
231
Demeanor has been defined as "the aggregate of a witness's conduct, manner, behavior, delivery, and
inflection [...]". In short, anything that characterizes his style of testimony but does not appear in a
transcript of his actual words.
232
The use of demeanor as a basis for evaluating credibility in the context of
international protection claims should be avoided in almost all instances.
233
Considered a poor indicator of
credibility is one's demeanor. If used as a negative factor, the judge must provide justifiable reasons as to
why and how the applicant's demeanor and presentation affected the credibility evaluation, taking into
account the applicant's relevant capacity, ethnicity, gender, and age. It should only be used (if at all) in the
context of understanding the culture and background of the applicant.
234
However, it is true that courts
and tribunals frequently emphasize the significance of having had the opportunity to see and hear the
witnesses. For instance, the European Court of Human Rights "accepts that, as a general rule, national
authorities are best suited to assess not only the facts but, more importantly, the credibility of witnesses,
since they have had the opportunity to observe, hear, and evaluate the demeanor of the individual in
question".
235
Consequently, comportment may have some influence during an oral hearing. The Irish High
Court has issued the following guidelines for assessing conduct:
[T]he decision-maker must be careful not to misplace reliance upon demeanour and risk
construing as a deliberate lack of candour a demeanour which may be the result of
nervousness, of the stress of the occasion and even of the embarrassment of being an asylum
seeker. An apparent hesitation and uncertainty may well be attributable to difficulties in
language and comprehension.
236
The second sentence of Article 4 (1) QD states that "it is the Member State's responsibility to assess the
relevant elements of the application in cooperation with the applicant". The Court of Justice of the
European Union (CJEU) has explained that while "it is generally the responsibility of the applicant to submit
all elements necessary to substantiate the application", it remains the responsibility of the Member State
to cooperate with the applicant in determining the relevant elements of the application.
237
Cooperation implies that the applicant and determining authority collaborate to achieve a common
objective.
238
The common objective is to collect as much relevant evidence as possible in order to assess
the veracity of the asserted facts and determine the need for international protection on a solid basis. The
EAC states: "It is the responsibility of the asylum authority, in collaboration with the applicant, to evaluate
the relevant elements of the application. This is sometimes referred to as both parties sharing the burden
231
HK v. Secretary of State for the Home Department [2009] CSOH 35.
232
Tom Bingham, The Business of Judging: Selected Essays and Speeches (OUP 2000) 5.
233
International Association of Refugee and Migration Judges, Assessment of Credibility in Refugee and Subsidiary Protection claims under the EU Qualification
Directive - Judicial criteria and standards, March 2013, 41. See also MA (Nigeria) v Refugee Appeals Tribunal & Ors [2016] IEHC 16, for an informative insight
on Irish case-law on ‘demeanour’ in the context of credibility assessments.
234
International Association of Refugee and Migration Judges, Assessment of Credibility in Refugee and Subsidiary Protection claims under the EU Qualification
Directive - Judicial criteria and standards, March 2013, 41.
235
See i.e., RC v Sweden App no 41827/07 (ECHR, 9 June 2010) [52]; ME v Sweden App no 71398/12 (ECtHR, 26 June 2014) [78].
236
HR v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2011] IEHC 151, [7].
237
Singh and others v. Belgium App no 33210/11 (ECHR, 2 October 2012) [103].
238
Case C-277/11 M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General (Opinion of Advocate General), ECLI:EU:C:2012:253 [88].
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of proof. […] This shared responsibility is intended to provide the decision maker with qualitatively and
quantitatively sound information from which to make a decision".
239
The CJEU has elaborated on what this means in practice: "This obligation to cooperate therefore means, in
practice, that if, for whatever reason, the elements provided by an applicant for international protection
are not complete, up-to-date, or relevant, it is necessary for the Member State concerned to cooperate
actively with the applicant, at that stage of the procedure, so that all the elements required to substantiate
the application can be obtained.
240
The gathering of evidence for the application should be a collaborative
effort that imposes extensive communication obligations on both the Member State and the applicant.
241
In principle, it is the responsibility of the applicant to submit evidence in support of a request for
international protection, but "the examiner may use all the means at his disposal to produce the necessary
evidence in support of the application".
242
Moreover, due to the unique and contextual circumstances of
some applicants, the determining authority may be required to assume a greater level of responsibility for
gathering evidence pertaining to the application.
243
Further, UNHCR has stated, "[i]n light of the particulars of a refugee's situation, the adjudicator shares the
responsibility to ascertain and evaluate all pertinent facts. This is accomplished in large part by the
adjudicator's familiarity with the objective situation in the country of origin in question, knowledge of
relevant matters of common knowledge, guiding the applicant in providing relevant information, and
adequately verifying alleged facts that can be substantiated (emphasis added)".
244
Moreover, due to the unique and contextual circumstances of some applicants, the determining authority
may be required to assume a greater level of responsibility for gathering evidence pertaining to the
application.
245
As a result, it suffices to mention this fundamental principle of refugee law as stated by
UNHCR: "Due to the particularities of a refugee's situation, the adjudicator shares the responsibility to
ascertain and evaluate all the relevant evidence".
246
239
R v Secretary of State for the Home Department, Ex parte Sivakumar (FC) [2003] UKHL 14, [16].
240
A v Secretary of State for the Home Department [2003] EWCA Civ 175, [20], Keene LJ stated: “As a matter of principle it would be difficult to achieve
[anxious] scrutiny whilst closing one’s eyes to relevant evidence”.
241
Auad v. Bulgaria App no. 46390/10 (ECHR, 11 October 2011) [103].
242
UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, para. 6.
243
UN High Commissioner for Refugees (UNHCR), Beyond Proof, Credibility Assessment in EU Asylum Systems : Full Report, May 2013, 126
https://www.refworld.org/docid/519b1fb54.html accessed 6 January 2023.
244
UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, para. 6.
245
UN High Commissioner for Refugees (UNHCR), Beyond Proof, Credibility Assessment in EU Asylum Systems : Full Report, May 2013, 127
https://www.refworld.org/docid/519b1fb54.html accessed 6 January 2023.
246
Idem, 35.
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4. COURT OF JUSTICE OF EUROPEAN UNION AND EUROPEAN COURT
OF HUMAN RIGHTS RELATED JURISPRUDENCE ON ASYLUM AND
TRANSGENDER RIGHTS
4.1. SEXUAL ORIENTATION AND ASYLUM
The CJEU has had three opportunities to hear sexual orientation asylum claims thus far. The first
opportunity presented itself in the combined cases C-199/12 to C-201/12, X, Y, and Z v. Minister voor
Immigratie en Asiel,
247
in which the possibility of returning asylum seekers to their home countries based
on their being discreet with regards to their sexual orientation has been examined. On the other hand, the
Court determine that in order for a particular social group to qualify for asylum under the 1951 Refugee
Convention,
248
sexual orientation applicants must meet two criteria: membership in a group that is socially
recognized in the country of origin (social recognition test) and recognition of sexual identity as a
fundamental characteristic of a person (fundamental characteristic test). Additionally, the Court
determined that criminalizing same-sex behaviour is not a form of persecution in and of itself. Both of these
points reflect a strict reading of EU law that runs counter to UNHCR guidelines
249
and commentators'
opinions.
250
In its 2013 X, Y, and Z decision, the CJEU determined that the right of persons to live according to their
individual sexual orientation as an expression of the right to respect one's private and family life (Article 7
of the EU Charter, corresponding to Article 8 of the ECHR) is fundamental, but does not fall within the
category of fundamental rights from which no derogation is possible. Although the Court has not explicitly
interpreted Article 7 of the EU Charter, its reasoning demonstrates that the applicable criterion is whether
violations of the right may be so grave as to meet the threshold of Article (9)(1). (a). The essential question
is whether the violation is serious enough.
251
Not all violations of fundamental rights necessarily meet this
criterion. Under these conditions, the Court concludes that the mere existence of legislation criminalizing
homosexual acts "cannot be regarded as an act affecting the applicant in such a significant manner that it
reaches the level of seriousness required for a finding that it constitutes persecution" under Article 9(1).
252
Nonetheless, a sentence of imprisonment that accompanies such a legislative provision and is actually
applied in the country of origin may be disproportionate or discriminatory, and therefore constitute
persecution.
253
If laws mandating imprisonment are not actually enforced, the violation may not be
deemed severe enough to constitute persecution. A violation of derogable human rights, such as those
protected by Article 7 of the EU Charter/Article 8 ECHR, must meet a higher threshold of seriousness,
whereas a violation of non-derogable rights may constitute persecution by its very nature.
In Y and Z, the CJEU then examined Article 4 QD in its entirety to determine whether it was reasonable to
expect an applicant to abstain from religious practices that would expose him or her to the risk of
persecution. It held: None of [the rules in Article 4 QD] states that, in assessing the extent of the risk of
actual acts of persecution in a particular situation, it is necessary to take into account the possibility
247
Joined Cases C‑199/12 to C‑201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel [2013] ECLI:EU:C:2013:720.
248
Idem.
249
UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or
Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October
2012, HCR/GIP/12/01.
250
International Commission of Jurists, X, Y and Z: a glass half full for ‘rainbow refugees’?, 3 June 2014.
251
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [57]. In the same light, see the referring Federal Administrative Court (Germany), judgment
of 10 December 2010, BVerwG 10 C 19.09, BVerwG:2010:091210B10C19.09.0, [20], available in English at www.bverwg.de.
252
Joined Cases C‑199/12 to C‑201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel [2013] ECLI:EU:C:2013:720 [55].
253
Idem [54]-[56].
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available to the applicant of avoiding the risk of persecution by abstaining from the religious practice in
question and, consequently, renouncing the protection that the Directive is intended to afford the
applicant by conferring refugee status. Therefore, a person should be granted refugee status if it is
determined that, upon his return to his country of origin, he will engage in a religious practice that will
expose him to a real risk of persecution. In principle, it is irrelevant that he could avoid this risk by abstaining
from certain religious practices. […] Individually evaluating a request for refugee status, [the competent
authorities] cannot reasonably expect the applicant to refrain from these religious practices.
254
In X, Y, and Z, the CJEU took a similar approach and concluded that homosexual applicants could not be
reasonably expected to refrain from expressing their sexual orientation in order to avoid the risk of being
persecuted, with the exception of acts that are deemed criminal under the national law of EU Member
States.
255
Aside from that, for the purposes of determining the causes of persecution, there are no
restrictions on "the attitude that members of a particular social group may adopt with regard to their
identity or to behavior that may or may not fall within the definition of sexual orientation".
256
It is
"incompatible with the recognition of a characteristic so fundamental to a person's identity that they
cannot be required to renounce it" to require members of a social group with the same sexual orientation
to conceal that orientation.
257
In addition, applicants cannot be expected to conceal their sexual orientation
to avoid persecution.
258
The fact that an applicant could avoid the risk by expressing his or her sexual
orientation with greater restraint than a heterosexual is irrelevant in this regard.
259
The Court addresses evidentiary standards more explicitly in the second sexual orientation asylum case
heard by the CJEU: the CJEU stated in Joined Cases C-148/13 to C-150/13, A, B, and C v Staatssecretaris van
Veiligheid en Justitie,
260
that the sexual orientation declared by asylum applicant constitutes merely the
starting point in the process of assessing the facts and circumstances, in light of the particular context in
which asylum applications are made. While some European Union Member States skirt the issue by
accepting asylum seekers regardless of their self-declared sexual orientation,
261
others, such as Hungary in
the F case,
262
are eager to carefully examine applicants' self-declared sexual orientation, disbelieve it
whenever possible, and thus find an easy way to deny the asylum claim. In A, B, and C, the Court correctly
refused to use sexualized evidence or stereotyped assessments in sexual orientation asylum claims,
effectively precluding medical tests such as phallometric testing and explanations of sexual practices on
the grounds that such evidence violates the dignity and privacy of the claimants (Articles 1 and 7 of the EU
Charter). However, no positive guidance
263
regarding the types of questions that are appropriate in these
circumstances was provided. Additionally, stereotype-based questions may be asked as part of a more
balanced line of questioning, leaving a great deal of room for ambiguity and allowing for inappropriate
interviewing and decision-making.
The F case reintroduced sexual orientation asylum claims to the European Union, allowing the Court to
correct some of the flaws in its two previous decisions on the subject. It was unknown whether the Court
would take advantage of this opportunity appropriately. Despite the fact that personality tests cannot
254
Cases C-71/11 and C-99/11, Y and Z [2012] ECLI:EU:C:2012:518 [70].
255
Joined Cases C‑199/12 to C‑201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel [2013] ECLI:EU:C:2013:720 [66]-
[67].
256
Ibid., paras. 67 and 68.
257
Idem, [70].
258
Idem, [71].
259
Idem [75[.
260
Joined cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie [2014] ECLI:EU:C:2014:2406.
261
Nuno Ferreira, ‘Portuguese Refugee Law in the European Context: The Case of Sexuality-Based Claims’, (2015) 27(3) International Journal of Refugee
Law 411.
262
Case C-473/16 F v Bevándorlási és Állampolgársági Hivatal [2018] ECLI:EU:C:2018:36.
263
Steve Peers, ‘LGBTI asylum-seekers: the CJEU sends mixed messages’ (EU Law Analysis, 2 December 2014)
<http://eulawanalysis.blogspot.com/2014/12/lgbti-asylum-seekers-cjeu-sends-mixed.html> accessed 9 April 2022.
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determine an applicant's sexual orientation, AG Wahl argued in this case that they should be permitted if
consent is obtained and the tests are conducted in accordance with the applicant's right to dignity and
respect for private and family life (Articles 1 and 7 of the EU Charter). AG Wahl effectively granted EU
Member States an unnecessarily large margin of appreciation and an alarming amount of leeway to
discredit asylum seekers' claims, which demanded our vehement condemnation.
264
4.2. GENDER IDENTITY IN CJEU LAW
In P v S and Cornwall County Council (P v S), the CJEU had to decide whether the principle of equal
treatment in terms of working conditions, including dismissal – which was enshrined at the time in Article
5 (1) of Directive 76/207/EEC
265
and is now included in the Recast Directive – precluded the dismissal of a
transsexual person based on gender reassignment.
266
Hereinafter in this subchapter, I will use the term
"transsexual" as the CJEU has defined it. Using the term "transgender" instead, as a broad concept,
according to Stryker, Valdes and Roen, is more inclusive and opposing binary distinctions.
267
Transgender
theorists regard the term "transgender" as inclusive of those identifying as transsexual, and that both can
relate to queer identities.
268
Additionally, I will use the term "gender reassignment" because it is the legal
term used by the CJEU.
P, the applicant, was a manager at Cornwall County Council when he informed S, the Director of Studies,
Chief Executive, and Financial Director, of his intention to undergo gender transition. P received notification
of contract termination a few months later, following minor surgery.
269
Contrary to the United Kingdom's and Commission's interpretations,
270
the Court held that such dismissal
was contrary to the directive's stated purpose.
271
It based its decision on the European Court of Human
Rights' (ECtHR) case Rees v United Kingdom,
272
which defined transsexuals as "those who, whilst belonging
physically to one sex, feel convinced that they belong to the other" often seeking to undergo "medical
treatment and surgical operations to adapt their physical characteristics to their psychological nature".
273
Additionally, it recalled prior case law that regarded equality as a fundamental right.
274
However, problematic categorization and subsequent legal considerations can exacerbate social insecurity.
As previously stated, the distinction between transsexuality and transgenderism raises some concerns
about the inclusion (or exclusion) of specific individuals in one or the other. Additionally, these two
categories coexist in fundamental tension, with transsexuality strengthening the binary system and
transgenderism disrupting it. As a result, one might conclude that this Court's decision reflects that
tension.
275
264
Nuno Ferreira and Denise Venturi, ‘Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v
Bevándorlási és Állampolgársági Hivatal’ (Odysseus Blog – EU Immigration and Asylum Law and Policy, 24 November 2017).
265
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions [1976] OJ L39.
266
Case C-13/94 P v S and Cornwall County Council [1996] ECLI:EU:C:1996:170 [13] (Hereinafter P v S).
267
Susan Stryker, Transgender History (Seal Press 2008) 19; Francisco Valdes, Afterword & Prologue: Queer Legal Theory (1995) 83 California Law Review
344; Katrina Roen ‘’Either/Or’ and ‘Both/Neither’: Discursive Tensions in Transgender Politics – TEST’(2002) 27(2) Signs 501, 521.
268
Idem.
269
P v S [3]- [6].
270
Idem [14]-[15].
271
Idem [24].
272
Rees v The United Kingdom App No. 9532/81 (ECHR, 17 October 1986).
273
P v S:170 [16].
274
Idem [18]- [19].
275
STYCHIN, ‘Troubling Genders: A Comment on P. v. S. and Cornwall County Council’, p. 222.
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In this case, the strong opinion of Advocate-General (AG) Tesauro
276
is worth investigating, not only
because it influenced the Court's conclusion,
277
but also because it indicated an audacious move that the
Court did not make.
It is true that Mr. Tesauro's vision was consistent with a medical discourse that pathologizes transsexuals,
a discourse that the Court did not appear to follow.
278
Mr. Tesauro was inspired by a definition proposed
at the time by the Council of Europe Parliamentary Assembly (PACE), which defined transsexualism as a
"dual personality syndrome, one physical, the other psychological".
279
However, he furthered his rationale
in the manner below.
The AG initially acknowledged a dynamic view of the legal system, stating that the law cannot "separate
itself from society as it is", and thus must be "capable of regulating new situations revealed by social
change".
280
He continued by criticizing the Directive's undeniably embedded "traditional man/woman
dichotomy" claiming that it overlooked "all unfavorable treatment related to sex",
281
as well as the
"possible range of characteristics, behavior, and roles shared by men and women, so that sex itself ought
to be thought of as a continuum".
282
Surprisingly, it also implied that a "third gender" individual should be
excluded from the Directive.
283
With numerous references to the "fundamental", "inalienable", "universal" principle of equality
284
and a
somewhat suggestive and lengthy argumentation – from the ironic reference to Adam and Eve
285
to
references to social justice and European integration
286
– the Opinion concluded by urging the Court to
make the "courageous", "bold but fair and legally correct"
287
decision. The Court adopted a similar position.
5. WHERE EU FALLS SHORT ON GENDER IDENTITY/EXPRESSION
ASYLUM JURISPRUDENCE
At this point, deficiencies in EU legislation relating to the preservation of gender variations can be
identified. One might wonder if the lack of proper legal protections and the ambiguity around certain
existing and developed notions were intentional or the product of irresponsible methods. Furthermore,
one can wonder whether the Union is capable of acting at all, and if so, how far. Is the Union anticipated
to act in any case?
To begin, keep in mind that the EU's (non-discrimination) legal framework has a very limited field of
application and even a more limited scope of human rights protection. Despite its noble intentions, one
could argue that the Union is technically and constitutionally incapable of acting in legal areas where
intervention is required. What is the reason for this?
276
Opinion of Advocate General Tesauro, delivered on 14 September 1995, P v S and Cornwall County Council, Case C-13/94, ECR 1996 I-02143,
ECLI:EU:C:1995:444.
277
BARNARD ‘P v. S: Kite Flying or a New Constitutional Approach?’, p.62. 141.
278
Carl F. Stychin, ‘Troubling Genders: A comment on P. v. S. and Cornwall County Council’ (1997) 2(3) International Journal of Discrimination and the Law
217, 222.
279
Recommendation 1117 on the Condition of Transsexuals Parliamentary Assembly of the CoE (29 September 1989) [1]; Opinion of Advocate General Tesauro,
delivered on 14 September 1995, Case C-13/94 P v S and Cornwall County Council [1995] ECR I-02143, ECLI:EU:C:1995:444 [8].
280
Opinion of Advocate General Tesauro, delivered on 14 September 1995, Case C-13/94 P v S and Cornwall County Council [1995] ECR I-02143,
ECLI:EU:C:1995:444 [9].
281
Idem [16].
282
Idem [17].
283
Idem [22].
284
Idem [19], [20], [22], [24].
285
Idem [17].
286
Idem, referring to words once articulated by the AG Trabbuchi.
287
Ibid [24].
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39
To begin, Articles 3–6 and 352 of the TFEU
288
outline the Union's powers, within which and only within
which the Union is entitled to operate on the basis of the conferral principle. Furthermore, according to
Article 19 of the TFEU,
289
the Union is expected to combat discrimination "within the limits of the powers
conferred by the Treaties", i.e., the principle of non-discrimination can only be applied if the subject comes
within the scope of EU legislation.
The EU Charter's Article,
290
which refers to the Charter's scope of application, contains a similar restriction.
When implementing EU law and within the bounds of the Treaties' powers, paragraph (1) states that the
Union and Member States must respect and promote the rights and principles enshrined therein, while
paragraph (2) clarifies that the EU Charter cannot be used to expand the scope of EU law or to create or
modify the Union's powers and tasks (as also stated in the second sentence of Article 6 (1) TEU).
291
In the absence of specific legal protection, sporadic attempts to fill the gap and the use of imprecise notions
created an unsettled scenario. On the one hand, the CJEU incorporated protection for "gender
reassignment" under the category of "sex" discrimination, reinforcing EU law's binary approach to sex and
gender and establishing that there was no room for further argument. The Commission
292
and the
European Parliament,
293
on the other hand, were of the opinion that a broader definition of gender identity
should be included. I argue that gender expression is a missing ground for protection as well.
Despite this, the legal structure of the European Union remained deafeningly mute. Even when the issue
was being debated, the Council abstained from incorporating such an explicit reference in the Goods and
Services Directive, and the CJEU earlier took that stance in P v S.
294
The Court's recent decision in MB
established that, rather than accommodating the Commission, its goal was to mature the comparative
element and explain its (and the Union's) sphere of competence. Despite the fact that this would not be
the first or second time the Court would rule in obiter dictum, the Court is not to blame because it was not
convened to determine that subject.
As a result, determining whether such emptiness, confusion, and lack of concretization were intentional or
unintended is challenging. There is no shortage of awareness or sensitivity; on the contrary, both are
plentiful. However, it appears that the Union is waiting for new litigation, specifically claims brought by
trans people who have not undergone gender confirmation surgery, other gender non-conforming
individuals, or intersex people, to emerge through judicial interpretation, potentially leading to legislative
changes, as happened after P v S.
295
This avoids predicting problems and complexities, but it forces the legal system to operate in a reactive
rather than proactive approach. The legislation, according to Attorney General Tesauro, must "keep pace
with social changes".
296
This, in my opinion, necessitates the legal system to evolve not merely to accept
288
Article 3 – exclusive competence; Article 4 – shared competences; Article 5 – coordinating competences; Article 6 – complementary competences; Article 352
– flexibility clause; See Robert Schütze, ‘EU Competences – Existence and Exercise’ in Anthony Anrull and Damian Chalmers (eds) The Oxford handbook of
European Union law (Oxford University Press 2015) 84- 89; Paul Craig and Gráinne de Búrca, EU Law, Text, Cases, and Materials (6th edition, Oxford University
Press 2015) 75- 94.
289
Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326.
290
Paul Craig and Gráinne de Búrca, EU Law, Text, Cases, and Materials (6th edition, Oxford University Press 2015) 933.
291
For a comment, see Angela Ward ‘Article 51 Field of Application’ in Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward (eds), The EU Charter of
Fundamental Rights – A Commentary (Hart Publishing 2014).
292
European Commission, Report to the European Parliament, the Council and the European Economic and Social Committee on the application of Council
Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2015]
COM/2015/0190.
293
Resolution of 15 September 2016 on application of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation (‘Employment Equality Directive’) (European Parliament, 2015/2116(INI)).
294
See The Gender Directives and also Council of the European Union, Draft Minute of the 2606th meeting of the Council of the European Union (Employment,
Social Policy, Health and Consumer Affairs) Document Number ST 13369 2004 INIT, held in Luxembourg on 4 October 2004, 7.
295
Inês Espinhaço Gomes, Study Paper No 04/19 Queering European Union Law: Sex and Gender Beyond the Binary and Cisnormativity (Europa-Kolleg
Hamburg, Institute for European Integration 2019) 58.
296
Opinion of Advocate General Tesauro, delivered on 14 September 1995, Case C-13/94 P v S and Cornwall County Council [1995] ECR I-02143,
ECLI:EU:C:1995:444 [9].
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40
new societal notions and advancements, but also to be capable of influencing societal change by offering
new perceptions. To put it another way, law must be capable of not only providing legal answers to
discrimination claims brought by people who do not conform to binary and cis norms, but also of raising
societal awareness of these people and their issues, thereby contributing to the debate and deconstruction
of dichotomies.
297
Indeed, Article 21 (1) of the EU Charter mandates that the Union actively promote basic
rights.
298
It is my view that EU law, is merely one tool among others at our disposal towards inclusion.
299
It is debatable whether the lack of appropriate legal provisions and the ambiguity of some existing and
manufactured notions were intentional or unintentional. Furthermore, one can wonder if the Union has
the power to intervene at all, and if so, how far. The Union's legal framework establishes a reciprocal
interaction with national legal systems, in addition to the osmotic relationship outlined above between law
and society. The impact of EU law on national laws is evident, but the contrary is also true. The CJEU's so-
called general principles of Community law is primary law and the European Convention of Human Rights
and its elaboration by the European Court of Human rights are included therein. On the other hand, general
principles of EU law were inspired not only by international human rights instruments, but also by national
constitutions, before an express protection of human rights was established in the Treaties and the EU
Charter came into force and became primary legislation.
300
Similarly, in terms of the subject at hand, the EU Member States' national legal systems are evolving new
and more progressive characteristics. The German Federal Court, for example, declared in October 2017
301
that the civil status law, which mandated gender registration but did not give a gender marker other than
male or female, was unconstitutional. As a result, it asked that German legislators establish Basic Law-
compliant provisions by December 31, 2018.
302
Apart from the notable remarks on "binary gender patterns"
303
and assumptions
304
, and thus the
recognition of diverse identities beyond dichotomies, the recognition of "gender identity" as a protected
ground against discrimination under "gender"
305
– (de)constructions that may well inspire the CJEU – the
point that is worth making here is that the inclusion of gender expression in the protected characteristics
would open the door to more inclusive readings of transgender phenomena and violations of human rights
that are linked to gender nonconforming phenomena that are not linked to binary medicalized identity
claims and are embodied versions of (a)gendered self-narratives.
It's unclear how (or even if) the Victims' Directive
306
that mentions gender expression would continue in
the latter case, but how would Union law respond to claims brought by someone who was a survivor of a
crime or in fear of their country of origin of persecution because of their gender nonconforming expression
or non-binary gender? Could the person rely on gender nonconformity, apart from gender identity, in
297
Similarly, Carl F. Stychin, ‘Troubling Genders: A comment on P. v. S. and Cornwall County Council’ (1997) 2(3) International Journal of Discrimination and
the Law 217, 218- 219. Skeptical in this regard is Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) 5 Gay and Lesbian Law Journal 1, 41. The
relationship between law and social change is controversial for Martha Minow, ‘Law and Social Change’(1993) 62 (1) UMKC Law Review 171.
298
Paul Craig and Gráinne de Búrca, EU Law, Text, Cases, and Materials (6th edition, Oxford University Press 2015) 397; Andrew Williams, ‘Human Rights in
the EU’ in Anthony Arnull and Damian Chalmers (eds) The Oxford Handbook of European Union Law (Oxford University Press 2015) 252.
299
Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’(1995) 5 Gay and Lesbian Law Journal 1, 41 and 44, arguing for th e need for ‘more direct
strategies’. Along the same lines, Dean Spade, ‘Trans Survival and the Limits of Law Reform’ in Laura Erickson -Schroth (ed) Trans bodies, Trans selves: A
Resource for the Transgender Community (Oxford Univ. Press 2014) 187, claiming the ineffectiveness of (US) anti-discrimination law and hate-crime legislation,
and proposing new strategies.
300
FRA and CoE, Handbook on European non-discrimination law (Publications Office of the European Union, 2018) 20-21.
301
Bundesverfassungsgericht (Germany), Headnotes to the Order of the First Senate of 10 October 2017 (1 BvR 2019/16) [1]-[69]. For an English version, see
<http://www.bverfg.de/e/rs20171010_1bvr201916en.html> accessed on 10 April 2022.
302
Idem, 3.
303
Bundesverfassungsgericht (Germany), Headnotes to the Order of the First Senate of 10 October 2017 (1 BvR 2019/16) for instance [59].
304
Idem, for instance [54].
305
Idem [56].
306
Council of the European Union, Directive 2012/29/EU of the European Parliament and of the Council of October 2012 establishing minimum standards on the
rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, 14 November 2012, L 315/57.
A Comparative Legal Analysis of Transgender Asylum Adjudication – Mariza Avgeri, 2023
41
asylum claims? How would the binary understanding of "sex" under Union laws be understood when
confronted with a non-binary/medicalized view of sex and gender under national law?
Those questions, of course, are in addition to the Court's potential difficulties in dealing with claims brought
by intersex and trans people, if their sex or gender is not legally recognized: is gender identity included in
"sex", as "gender reassignment" is under the EU Law? Are "gender-related issues" included in the word
"sex status"? As a result, it is apparent that the Union must be prepared to face inescapable future
problems.
307
PART B: US
6. THE US ASYLUM ADJUDICATION SYSTEM
The U.S. protection for those fleeing persecution is based on two international treaties enacted in response
to the international community's failure to adequately protect Holocaust refugees. The 1951 U.N.
Convention relating to the Status of Refugees, 189 U.N.T.S. 137, signed on July 28, 1951, and the 1967 U.N.
Protocol relating to the Status of Refugees, 19 U.S.T. The Refugee Act of 1980, which amended the
Immigration and Nationality Act (INA) to explicitly incorporate international obligations into U.S. domestic
law, was passed by Congress in 1980. Applicants may qualify as "refugees" under INA 101(a)(42)(A); 8 U.S.C.
1101(a)(42)(A) if they are unable or unwilling to return to their home country "due to persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion". To apply for refugee status in the United States, a person must typically be
outside of the country of persecution.
308
The INA makes a distinction between individuals who seek relief while still living abroad and those who
have already arrived on U.S. soil. Whether a person is designated a "refugee" or an "asylee" upon
admission, both must meet the legal definition of a refugee. INA § 101(a)(42)(A); 8 U.S.C. § 1101(a) (42)
(A). INA 207; 8 U.S.C. 1157 designates as "refugees" and admits to the United States foreign nationals who
have been granted permission to enter the United States through its refugee resettlement program but
are still located abroad. To qualify as a refugee, a person must meet the requirements of INA 101(a)(42)(A)
and 8 U.S.C. 1101(a)(42) (A). Those who arrive at a U.S. border or are physically present in the U.S. but fear
returning to their home countries apply for "asylum". If their applications for asylum are approved, they
are labelled "asylees". Asylum benefits are determined pursuant to INA 208 and 8 U.S.C. 1158.
309
Asylum seekers are individuals who have arrived in the United States in search of protection from
persecution in their home countries. Asylum seekers who apply for asylum at a port of entry or after the
DHS places them in removal proceedings are referred to as "defensive" asylum applicants. An immigration
judge will typically hear these cases, unless the individual is a UAC, per Trafficking Victims Protection
Reauthorization Act (TVPRA). In contrast, the cases of asylum seekers who file "affirmatively" — by
voluntarily filing an application with USCIS and who are not in removal proceedings — are initially reviewed
307
As pointed out by Nora Markard, the German Court left that decision to the legislator, see Nora Markard, ‘Structure and Participation: On the Significance of
the ‘Third Option’ for the Equality Guarantee’ in The ‘Third Option’: Not Man, Not Woman, Not Nothing held on 3 March 2018
<https://www.bundesverfassungsgericht.de/e/rs20171010_1bvr201916en.html> accessed on 10 April 2022.
308
Lenni Benson, Stepehn Yale-Loehr, and Shoba Sivaprasad Wadhia, Immigration and Nationality Law: Problems and Strategies (2nd edition, Carolina
Academic Press 2020), 114.
309
Idem, 115.
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by a USCIS Asylum Officer. If the Asylum Officer decides not to grant asylum, only then is the case referred
to an immigration judge (IJ). See Figure 1. If, however, the noncitizen asylum applicant is in valid
nonimmigrant status when the Asylum Officer rejects his or her claim, the USCIS denies the asylum claim
but does not refer the case to an immigration judge or initiate removal proceedings. The nonimmigrant
simply continues in his or her current temporary status.
310
As opposed to the Refugee Admissions Program,
there is no annual cap on the number of people who can be granted asylum. After a person is granted
asylum, they are referred to as "asylees".
311
Defensive asylum application is reserved for those that are placed in removal proceedings because they:
Arrived at a U.S. Port of Entry and presented themselves to a U.S. official to express fear of return and to
request asylum; or were apprehended in the United States or at a U.S. port of entry without proper legal
documents or in violation of their immigration status; or Were apprehended by U.S. Customs and Border
Protection (CBP) while attempting to enter the United States without proper documentation. As required,
immigration judges hear defensive asylum claims in adversarial (court-like) proceedings. The judge will hear
arguments from the two parties listed below:
312
There are other ways people can end up in removal
proceedings, such as after presenting themselves at a POE to lawfully request asylum (not attempting to
enter without proper docs); Or, someone might have been placed in proceedings after an arrest internally
(by ICE, usually) and then the issuance of an NTA.
Immigration judges are not independent members of the judiciary. Immigration judges and BIA members
are not members of the judicial branch, despite their role in adjudicating complex and highly sensitive
cases. They are neither confirmed by the Senate nor granted life tenure, the traditional means of ensuring
judicial independence and preventing the politicization of the judicial process. These judges are instead
employed by the Executive Office for Immigration Review (EOIR), a division of the Department of Justice.
The Attorney General appointed them to their positions as attorneys.
313
Individuals who have suffered or fear persecution in their home countries on account of their race, religion,
nationality, political opinion, or social group are permitted by federal law to apply for asylum in the United
States. The 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations
Protocol Relating to the Status of Refugees establish this right to seek protection. 1980 saw the enactment
of the Refugee Act, which codified refugee and asylum protection.
314
The asylum regulations for applications before the asylum office and the immigration court are identical,
but are located in different sections of the CFR. 8 C.F.R. 208 contains asylum regulations pertaining to
applications before USCIS/the Asylum Office, while 8 C.F.R. 1208 contains asylum regulations pertaining to
applications before the immigration court. In the interest of clarity, this manual will refer to 8 C.F.R. 208 of
the Department of Homeland Security regulations.
315
Through U.S. Citizenship and Immigration Services
(USCIS), the Department of Homeland Security (DHS) adjudicates affirmative requests for asylum. The
Executive Office for Immigration Review (EOIR) of the Department of Justice has jurisdiction over pending
asylum applications in removal proceedings.
316
310
Idem, 821.
311
Idem, 821.
312
US Citizenship and Immigration Services ‘Obtaining Asylum in the United States’ <https://www.uscis.gov/humanitarian/refugees-and-
asylum/asylum/obtaining-asylum-in-the-united-states> accessed 9 January 2023.
313
Lenni Benson, Stepehn Yale-Loehr, and Shoba Sivaprasad Wadhia, Immigration and Nationality Law: Problems and Strategies (2nd edition, Carolina
Academic Press 2020), 723.
314
National Immigrant Justice Center, ‘Basic Procedural Manual for Asylum Representation Affirmatively and in Removal Proceedings’, October 2017, 9
<https://immigrantjustice.org/for-attorneys/legal-resources/file/nijc-procedural-manual-asylum-representation-pdf> accessed 9 January 2023.
315
Idem, para 1.
316
Idem, 10.
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The Immigration and Nationality Act (INA) outlines the legal eligibility requirements for asylum. If an
applicant for asylum meets the definition of a refugee, the request may be granted. A refugee is a person
who: Any person who is outside any country of such person's nationality or, in the case of a person having
no nationality, is outside any country in which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country
because of persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.
317
To establish a "well-founded fear" of persecution, an asylum seeker need only demonstrate a reasonable
likelihood that she will be persecuted. An applicant who demonstrates past persecution by the government
(or an entity the government cannot o