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“Persecution by Association” in the Context of EU Asylum Law

“Persecution by Association” in the Context of EU Asylum Law

1. Introduction 

An abundance of events from the recent past occurring in Iran, Iraq, Sudan, Syria, Central African Republic, Myanmar and elsewhere have clearly shown the devastating consequences of persecution. Among the most dreadful have been severe human rights violations and attacks against ethno-religious minorities committed by ISIS in the Syrian civil war and in Iraq, where members of Iraq’s diverse ethnic and religious communities have particularly been affected by the situation, Myanmar’s Rohingya crisis, Dinka-Nuer ethnic conflict in South Sudan, ethnic conflict between the Christian militias called the ‘anti-Balaka’ and the Muslim coalition in the Central African Republic, and persecution of non-Arab people and internally displaced Darfuris by Arab militia in Sudan. These unfortunate events demonstrate that persecution against various racial, ethnic, religious, social and political groups and their members is often at the root of personal identity-related tensions. Persecution almost invariably involves the targeting of racial, ethnic, religious, social or political groups. After all, the provisions in refugee law on persecution are most applicable when it comes to various acts of discriminatory violence and targeted mistreatment against or affecting any identifiable group.  

EU asylum acquis, more specifically, Article 2 of Directive 2011/95/EU,[1] commonly known as the Qualification Directive, requires a causal link between the reason and the persecution or the absence of protection against such persecution. Therefore, acts of persecution per se do not qualify a person as a refugee, but in order to do so, they must be committed for one (or more) of the five discriminatory reasons set out in Article 2 of the Qualification Directive and including race, religion, nationality, membership of a particular social group (which may include characteristics such as sexual orientation, gender identity or gender expressions and disability) or political opinion. This required nexus reflects itself in the two elements that this provision contains: first, there must be a connection with the acts of persecution in the sense that the applicant’s fear of persecution is linked to her (actual or imputed) protected characteristic, and second, there must be the connection with the lack of protection in cases where persecution is for reasons outside the definition of a refugee, but where it is tolerated, encouraged or not prevented by the actors of protection for reasons of one of the five grounds.[2] The nexus requirement would, therefore, be satisfied in relation to the lack of protection. Of course, there may also be other reasons why the actor of persecution has committed a persecutory act which are different from those exhaustively listed in Article 2 of the Qualification Directive and which take place in addition to the grounds of race, religion, nationality, membership of a particular social group or political opinion. Consequently, in order to establish the required causal link, the persecutory acts do not need to be solely motivated by one of the five discriminatory reasons enumerated.[3]

While it is now a generally accepted view in both legal doctrine and jurisprudence that, for the purposes of getting a refugee status, the reason(s) for persecution may not be actual characteristic(s) of the applicant for international protection but may also be imputed to them by their persecutor, this article argues that, by adopting the same broad and inclusive approach to interpreting the scope of the “reasons for persecution”, Article 2 of the Qualification Directive should also cover situations where asylum applicants themselves do not have or appear to have such protected characteristics but nevertheless reasonably fear persecution because of their association with a group or an individual who possess the protected characteristics (for instance, if the asylum seeker, she herself being an atheist, has left her country of origin because she already experienced persecution, or is afraid of being persecuted because of her marriage with a Christian and Christians are facing widespread persecution in her country of origin). 

Pursuant to Article 10(2) of the Qualification Directive, when case officers, interviewers and decision makers in the national determining authorities of EU Member States assess whether the applicant for international protection has a well-founded fear of being persecuted, the issue of whether or not she actually possesses the racial, religious, national, social or political characteristic which attracts the persecution is immaterial for their assessment and decision on granting refugee status, provided that such a characteristic is attributed to the applicant by the actor of persecution and the conditions that lead to the granting of refugee status, including the requirements and necessary elements constituting persecution are met; notably that the act of persecution is sufficiently serious by its nature or repetition so as to constitute a severe violation/deprivation of basic human rights or is an accumulation of various measures violating fundamental rights which is sufficiently severe, and that there is objectively substantiated well-founded fear of an individual from being persecuted. While the risk of being subjected to persecution upon return should always be an individual risk, such an assessment also involves situations where a well-founded fear by such a person of being persecuted is based on events which have taken place since the applicant left her country of origin (the so-called “sur place” situations that justify needs for international protection). The absence of previous persecution does not mean that there is no future risk of persecution for an individual applicant. The applicant’s fear may be well founded independently of her own past and current experiences. 

The remainder of this article proceeds as follows. Section 2 presents the concept of “persecution by association” and discusses the reasons and ways for applying this concept when considering the asylum seeker’s eligibility for refugee status. In so doing, it also analyzes the pertinent EU legislation and the available case law of EU Member States. Section 3 briefly concludes. 

2. “Persecution by association” 

“Persecution by association” seems to cause more difficulties to asylum authorities and courts of EU Member States in assessing whether acts of persecution can be considered to have been sufficiently linked to one of the legally recognised reasons for persecution. Two judicial decisions adopted by the national courts of EU Member States, leading to different outcomes in terms of granting the applicant refugee status, are of particular relevance for our discussion concerning the issue of recognition of the concept of “persecution by association” in examining the applicant’s right to refugee status. The first ruling was rendered by the Helsinki Administrative Court, while the second one was issued by the French National Asylum Court. The former case concerns an Ethiopian national whose asylum claim was rejected by the Finnish Immigration Service. The applicant applied for asylum because of threats and ill-treatment she suffered which arose as a result of her spouse’s involvement in the Oneg-party (listed as a forbidden party in Ethiopia). Her spouse fled their home. The applicant discovered her spouse’s political involvement after he fled. The police came to the applicant’s home to take her away. The applicant was imprisoned for two days and interrogated about her spouse’s whereabouts and activities. She was also assaulted. A few days later, the police once again came to question the applicant regarding her husband. She was also interrogated regarding her membership in the Oneg-party. Both the applicant and her child were threatened with their lives. The applicant was also raped by the police. On appeal, the Finnish Administrative Court held that because the applicant was not aware of her common-law husband’s political activities until after he fled, she was unlikely in any position of real authority in the Oneg-party. The Helsinki Administrative Court found that a sufficient amount of time had passed since the events described took place. Therefore, the Administrative Court stated that the applicant was no longer of any special interest to the Ethiopian authorities because of the political activities of her ex-common-law husband. As the applicant herself had not at any point been politically or socially active, it was also unlikely that the applicant herself would at that point be suspected or accused of membership of or being supportive of the opposition party. The Helsinki Administrative Court thus concluded that the applicant did not have compelling reasons to fear persecution on political grounds in her country of origin. While finding that the applicant had failed to establish a risk of persecution based on her imputed political opinion, the Administrative Court ruled that the applicant was to be granted a residence permit on the basis of subsidiary protection.[4] 

In the latter case, the applicant for international protection of Russian nationality and Chechen origin had an uncle who fought in the two Chechen conflicts and who was still suspected by the authorities of the federal Republic of Chechnya to have contacts with the rebels. The applicant’s uncle went into hiding in order to escape constant violence. The applicant was subjected to very violent interrogations on behalf of his uncle. He was arrested and then released for a large sum of money. After attending a hospital in Dagestan, he fled to France. The French asylum authorities rejected his asylum application. He challenged this first-instance decision before the National Asylum Court. The French Asylum Court, having considered all the facts and evidence available, held that the applicant was subjected to persecution by the authorities of the Federal Republic of Chechnya, whose objective was to put pressure on his uncle. After citing the provisions of Article 10(1)(e) of the Qualification Directive, it considered that threats to which the applicant would be subjected in case of his return to Russia emanated from political authorities acting for political reasons and with a political goal. Therefore, the Asylum Court found that even though these threats did not originate in opinions which the applicant actually held or which were imputed to him, they had to be considered as persecution for political reasons within the meaning of Article 10(1)(e) of the Qualification Directive, considering the nature of their authors, their goals and their methods. Interpreting the directive’s provision in such broader light enabled the French court to conclude that the alleged events amounted to persecution against the applicant that merits the directive’s protection. Accordingly, the applicant had a well-founded claim for refugee status, which the Asylum Court also granted him.[5] 

Obviously, both domestic courts (Finnish and French) indirectly recognised the concept of “persecution by association” in the two cases discussed above, albeit they did not expressly refer to it or use this notion as such in their rulings. They considered that persecution could occur regardless of whether the (potential) victim had a certain protected characteristic. The applicants’ political opinions were, therefore, irrelevant to their decisions. 

3. Conclusion 

As we could see, the definition of a “refugee” enshrined in the Qualification Directive covers a lot of grounds (reasons) for persecution concerning identifiable groups of people to be protected against prohibited acts of persecution. Having considered the pertinent case law in selected EU Member States, this article has argued that broad interpretation of the scope of the “protected ground” (reason for persecution) should include the concept of “persecution by association” applicable to the situations where the (potential) victim of the persecution is not herself the person with the protected characteristic. Clearly, such a wide understanding of the protected characteristics is also in line with the EU asylum law de lege ferenda, specifically Article 10(2) of the proposed new “Qualification Regulation”, which, if finally adopted, will be binding for the EU Member States in and of itself, without national transposition of its provisions, and will in principle provide for uniform standards. This provision sets out that when assessing if an applicant has a well-founded fear of being persecuted, it is irrelevant whether the applicant actually possesses the protected characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the persecutor.[6] This makes it imperative that competent national authorities and courts in EU Member States, when deciding on the asylum seekers’ applications for international protection, embark on a detailed analysis of the reasoning behind the persecutory treatment the asylum seekers have faced or may be at risk of suffering it if returned to their country of origin, looking for evidence that the protected ground (reason for persecution) is causative of such treatment, whether directly or indirectly. 

Reference

[1] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337, 20.12.2011, pp. 9–26.

[2] https://euaa.europa.eu/easo-practical-guide-qualification-international-protection/nexusfor-reasons(accessed 24 January 2024).

[3] In order to satisfy the causation requirement, that is the need for a causal link between the persecutorytreatment and the protected grounds, one should ask the following question: would the person concerned have been persecuted had she been of a different race, of a different nationality, of a different religion or political opinion, of a different sexual orientation, or in any converse position under any one of the other protected grounds? If the answer is yes, then the persecutory treatment is clearly caused by the protected grounds in question. Acts of persecution do not necessarily need to be linked explicitly to the protected ground, as long as they are linked to another factor that is indissociable from the protected ground. Essentially, when considering whether persecution has taken place, one should assess whether the serious and targeted mistreatment of an individual is because of a protected characteristic that cannot be separated from the particular factor causing persecution.

[4] Finland – Helsinki Administrative Court, 11 March 2011, 11/0294/1, European Database of Asylum Law (EDAL), https://www.asylumlawdatabase.eu/en/case-law/finland-helsinki-administrative-court-11-march-2011-1102941#content (accessed 26 January 2024).

[5] France – National Asylum Court (CNDA), 14 April 2010, Mr. K., n°09004366, European Database of Asylum Law (EDAL), https://www.asylumlawdatabase.eu/en/case-law/france-cnda-14-april-2010-mr-k-n%C2%B009004366#content (accessed 26 January 2024). 

[6] Proposal for a Regulation of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, and amending Council Directive 2003/109/EC […] concerning the status of third-country nationals who are long-term residents and repealing Council Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 2016/0223(COD), https://data.consilium.europa.eu/doc/document/ST-16279-2022-INIT/en/pdf (accessed 26 January 2024).

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