COUNCIL OF EUROPE

COMMITTEE OF MINISTERS

Recommendation Rec(2004)9 of the Committee of Ministers to member states on the concept of "membership of a particular social group" (MPSG) in the context of the 1951 Convention relating to the status of refugees

(Adopted by the Committee of Ministers on 30 June 2004, at the 890th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that, according to Article 1.a, paragraph 2, of the 1951 Convention relating to the Status of Refugees, the term "refugee" shall apply to any person who has a "well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion";

Taking into account the increasing number of cases where fear of being persecuted because of "membership of a particular social group" (MPSG) is claimed as grounds for refugee status and considering also the growing variety of reasons invoked to that effect;

Anxious to provide guidance to member states in applying this particular motif, as described in the Convention, which requires clarification, and to ensure a uniform application of the 1951 Convention in the member states of the Council of Europe;

Reiterating the liberal and humanitarian attitude of member states of the Council of Europe with regard to asylum;

Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms and to other relevant universal and regional human rights instruments;

Bearing in mind Recommendation No. R (81) 16 on the harmonisation of national procedures relating to asylum; Recommendation No. R (94) 5 on guidelines to inspire practices of the member states of the Council of Europe concerning the arrival of asylum seekers at European airports; Recommendation No. R (98) 15 on the training of officials who first come into contact with asylum seekers, in particular at border points; Recommendation Rec(2001)18 on subsidiary protection;

Aware of Parliamentary Assembly Recommendation 1374 (1998) on the situation of refugee women in Europe and of Parliamentary Assembly Recommendation 1470 (2000) on the situation of gays and lesbians and their partners in respect of asylum and immigration in the member states of the Council of Europe,

Considers that a "particular social group" is a group of persons who have, or are attributed with, a common characteristic other than the risk of being persecuted and who are perceived as a group by society or identified as such by the state or the persecutors. Persecutory action towards a group may however be a relevant factor in determining the visibility of a group in a particular society.

The concept would in particular include:

a. groups which may be defined by innate or immutable characteristics;

b. groups comprised of persons who share a common or historical background or characteristic that either is unchangeable or so fundamental to their identity, conscience or human dignity that those persons should not be forced to renounce it;

Recommends that member states take into account the following principles when determining, in the context of Article 1. A, paragraph 2, of the 1951 Convention, whether a person is persecuted because of membership of a particular social group:

1. There is no hierarchy amongst the five grounds of the 1951 Convention, that is, race, religion, nationality, MPSG and political opinion. All are applicable on an equal basis. Depending on the circumstances of an individual case, grounds may overlap and an asylum seeker may be eligible for refugee status on more than one of the grounds;

2. The concept of MPSG should be interpreted in a broad and inclusive manner in the light of the object and purpose of the 1951 Convention. However, interpretation of the concept of MPSG should not extend the scope of the Convention to impose upon states obligations to which they have not consented;

3. There is no requirement that a group be cohesive in order to be recognised as a "particular social group"; it is not necessary for members of the group to know one another or to associate. Nor is it necessary that all members of the group are at risk of being persecuted;

4. The size of the group is irrelevant in determining whether the concept of MPSG applies;

5. Mere membership of a particular social group, as described above, will not normally be enough to substantiate a claim for refugee status. Each asylum claim must be considered individually with regard to the nexus between the MPSG and the existing risk of persecution. Furthermore, the factual circumstances in the country of origin need to be taken into account. There may, however, be special circumstances in individual cases where mere membership can be a sufficient ground for fearing persecution;

6. When considering asylum requests based on MPSG, the competent authorities should, in addition to general standards prescribed in relevant international instruments, pay particular attention to standards with regard to gender- and age- related issues, confidentiality of the request and information about the country of origin;

Invites member states to inform the ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) about the implementation of the principles stated above.

Explanatory Memorandum

Introduction

In the context of its specific terms of reference that request it to "make proposals for the solution of practical and legal problems facing States in the field of territorial asylum, refugees and stateless persons, particularly by drawing up appropriate legal instruments (conventions and recommendations) …", the ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons" (CAHAR) considered the issue of "membership of a particular social group" (MPSG).

As a result of the discussions that led to the adoption of its opinions with regard to Recommendation 1374 (1998) of the Parliamentary Assembly on the situation of refugee women in Europe and Parliamentary Assembly Recommendation 1470 (2000) on the situation of gays and lesbians and their partners in respect of asylum and immigration in the Member States of the Council of Europe, the CAHAR found that the concept of MPSG needed clarification.

At its 51st Meeting, the CAHAR therefore established a Working Party with a view to preparing a draft recommendation to this end.

The draft finalised by the CAHAR at its 54th meeting was forwarded to the Committee of Ministers and was adopted by it on 30 June 2004 at the 837^th meeting of the Ministers' Deputies.

General considerations

In order to be recognised as a refugee, a person must show well founded fear of persecution on one of the five grounds set out in Article 1A, paragraph 2, of the 1951 Convention: race, religion, nationality, membership of a particular social group or political opinion.

Of these five grounds, the concept of "MPSG" seems to be the least clear. This ground has given rise to a wide range of interpretations. Meanwhile, the competent national authorities of the majority of members states have an increased awareness of asylum applications based on MPSG invoked by persons who fear persecution because they are, for example, children, women, gays or lesbians, transsexuals, members of a family, members of a tribe or persons connected with defeated regimes.

The Recommendation therefore aims at providing practical guidance for competent national authorities that deal with refugee status determination. Subsequently, in a broader perspective, the Recommendation also aims at contributing to the development towards harmonisation of rules and practices which are followed in Europe in matters of asylum policy and in particular with respect to the inclusion clauses stated in Article 1A of the 1951 Convention.

When drafting this Recommendation, the CAHAR took into consideration the work of the United Nations High Commissioner for Refugees (UNHCR) on the same subject and the on-going work conducted by the European Union in the development of its Common European Asylum System.

"The other relevant universal and regional human rights instruments" referred to in the Preamble include the Framework Convention for the Protection of National Minorities (CETS No. 157), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CETS No. 126), the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Rights of the Child (1989), the Convention on the Elimination of All forms of Discrimination Against Women (1979) and the Declaration on the Elimination of Violence against Women (1993). Guidance should also be taken from the Conclusions of the Executive Committee of the United Nations High Commissioner for Refugees.

The Recommendation combines the two traditional approaches used in interpreting what constitutes a "social group" within the meaning of the 1951 Convention, that is, on the one hand, the "protected characteristics" approach (the group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it) and, on the other hand, the "social perception" approach (members of the group share a characteristic that makes them a cognisable group or sets them apart from society at large).

Age, gender or sexual orientation are examples of characteristics referred to under sub-paragraph a) that are either innate or immutable.

Characteristics referred to under sub-paragraph b) include characteristics which are historical and therefore cannot be changed, such as the historical fact of a past association, occupation or status and those characteristics which, though it is possible to change them, ought not to be required to be changed because they are fundamental to the identity of the person or are an expression of fundamental human rights.

The characteristics mentioned under sub-paragraphs a) and b) are not exhaustive.

Persons that share common characteristics other than those mentioned under sub-paragraphs a) and b) might nonetheless constitute a particular social group if they are identified as such by society, the state or the persecutors and are for this reason set apart.

Persecution based on MPSG can also originate from non-state agents.

Comments on the principles set out in the Recommendation

Paragraph 2: The reference to broad and inclusive interpretation of the concept of MPSG is meant to clarify that this is a ground with its own merit. A situation that does not fall within one of the other grounds of the 1951 Convention may possibly fall within the ground of MPSG. However an interpretation should of course not go beyond the obligations accepted by member states. In this respect, it is recalled that the 1951 Convention is not intended to provide protection to all victims of persecution who flee across borders but only to those who fall within one of the specific grounds of the Convention.

Paragraphs 3 and 4 are intended to ensure that no other requirements than those mentioned above are applied in assessing whether a particular social group exists. As far as the "size" of the group is concerned, the "MPSG" ground, like any other grounds of the 1951 Convention, is not bound by the question of size.

Paragraph 5: Under "special circumstances" mere membership of a particular social group can be a sufficient ground to fear persecution. Such circumstances can for instance be a threat of inhuman or degrading punishment prescribed by law or resulting from a well-established practice or policy in the country of origin targeting a particular social group.

Paragraph 6: The words "general standards prescribed in relevant international instruments" refer in particular to those standards developed by the Council of Europe in Recommendation No R (81) 16 on harmonisation of national procedures relating to asylum, Recommendation No R (94) 5 on guidelines to inspire practices of the member states of the Council of Europe concerning the arrival of asylum seekers at European airports and Recommendation No R (98) 15 on the training of officials who first come into contact with asylum seekers, in particular at border points.

As far as "standards with regard to gender- and age- related issues, confidentiality of the request and information about the country of origin" are concerned, specific reference should be made to standards developed by the UNHCR, in particular in its Guidelines on international protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.

The last paragraph of the Recommendation deals with the implementation of the principles stipulated by the recommendation. It is a result of the discussion held in the CAHAR regarding the follow-up to be given to recommendations. Recommendations are not binding on member states, although the Statute of the Council of Europe empowers the Committee of Ministers to ask member governments "to inform it of the action taken by them" on recommendations. In 1987, at their 405th Meeting, the Ministers' Deputies adopted a message to intergovernmental committees (including the CAHAR), urging them to monitor the implementation of recommendations and resolutions more stringently.

In this regard, it should be stressed that this recommendation contains principles that are relevant for those officials dealing with refugee status determination to whom it should be made available and, if appropriate, translated into the national language(s).