Belated Recognition of “Private Persecution”

6 Initially, the Commission des recours des réfugiés (Refugee Appeals Board — CRR) defined persecution as a serious infringement of fundamental rights necessarily committed by a State agent, [5] provided that the agent was not acting in a personal capacity. [6] This restrictive interpretation was strongly criticised on the grounds that many acts of violence against women, homosexual, bisexual, intersex and transgender people are committed by private individuals, which therefore places them outside the scope of the definition of refugee (Jaillardon, 2008: 45). This approach was therefore gradually reconsidered.

7 At first, a slight relaxation in administrative jurisprudence was observed. Indeed, without abandoning the paradigm of the imputability of persecution to the States of origin, the judges agreed to modify their position by allowing cases of “indirect imputability”. In 1983, the Conseil d’État (Council of State — CE) agreed to treat as persecution acts committed by individuals with the encouragement or deliberate tolerance of the authorities. [7] Then, in 1991, the CRR accepted that acts committed by de facto authorities who had supplanted the State authorities in part of the State of origin could be classified as persecution. [8] However, although these developments allowed the recognition of refugee status of a number of women persecuted by religious fundamentalists during the 1990s, particularly in the Algerian [9] and Afghan [10] contexts, they remained insufficient and, most importantly, lacked justification in law. Indeed, not only was the paradigm of the imputability of persecution to the State not imposed by the texts, but it tended to distort the context and purpose of the Geneva Convention (Goodwin-Gill and Mc Adam, 2007: 98; Malher and Zimmermann, 2011: 366).

8 The legislator’s intervention was necessary to put an end to this restrictive interpretation. However, this was not without difficulty. Although a political consensus in favour of taking into account persecution committed by private actors emerged from 1997 onwards (Weil, 1997), it was only under the pressure of European Union law that the requirement that persecution was committed by the State was expressly abandoned. Thus, transposing Directive 2004/83/EC [11] in advance, Law No. 2003-1176 of 10 December 2003 enshrines the principle that the nature of the perpetrator of the persecution, whether public or private, is irrelevant for the purposes of refugee status. However, many cases of persecution in the private sphere are still not taken into account.

Limited Consideration of “Private Persecution”

9 Two main obstacles continue to limit the inclusion of “private persecution” in the scope of the definition of refugee.

10 First, internal asylum can be invoked against an applicant who is a victim of persecution by a non-State actor. Indeed, Article 1 of the above-mentioned Law of 10 December 2003 endorsed case law developed a few years earlier, according to which the possibility of resettlement in another part of the territory of the State of origin can provide grounds for rejecting an application for international protection. [12] And while it is expressly stated that the nature of the persecuting agent should be taken into account in its application, the parliamentary record indicates that the concept is only intended to apply in the context of persecution committed by private actors. [13] This creates an unfavourable legal regime applicable only to “private persecution”: unlike victims of State persecution, those claiming private persecution must demonstrate that they are not safe anywhere in their country, not only in their region of origin. However, it should be noted here that the judge’s power to invoke internal asylum against an applicant is discretionary. In addition, it is subject to the condition that the applicant can legally and safely settle in the area of refuge, [14] where they must be able to stay on a long-term basis [15] and lead a “normal life”. [16]

11 Second, we observe that the discriminatory dimension of a certain number of so-called private acts of violence has been discounted in the case law. It should be remembered that persecution is discriminatory by definition, and any applicant for refugee status must demonstrate that they have been specifically targeted in their country of origin on the basis of one of the above-mentioned grounds of persecution. However, some judges refuse to view this violence through the prism of social relations and analyse it on a strictly individual level, consigning it to personal or criminal motives (Tissier-Raffin, 2016: 402). This is particularly so in case law concerning domestic [17] and sexual violence. [18] Based on this interpretation, judges refuse to analyse the relevance of a possible reason for persecution giving rise to the right to refugee status, which is sometimes clearly applicable, and reject applications for refugee status outright, arguing that only a non-discriminatory reason determined the occurrence of the persecution.

12 Thus, although violence in the private sphere is no longer excluded as a matter of principle from the scope of the definition of refugee, it remains difficult to have this ground fully recognised as opening the way to refugee status. The same applies to serious violations of rights based on the gender identity or sexual orientation of applicants.

Mediate Inclusion of Gender-based Persecution

14 In France, the first times that refugee status was recognised in the context of gender-related persecution, i.e., persecution based on the victim’s gender identity or sexual orientation, took place between 1980 and 1990. This was possible by using the two existing political grounds for persecution in the texts, in particular political opinion [19] and action to promote freedom. [20] These grounds were invoked in favour of women activists for the (civil, political, economic or social) rights of women persecuted in their country of origin.

15 Then, in accordance with numerous recommendations in international and European law in this area, the French administrative courts invoked the ground of membership of a certain social group. This ground for persecution, which was included in the Geneva Convention in the context of the Cold War, was only rarely used in the early years of its application. While this “enigmatic locution” (Crépey, 2013: 568) remained vague for a long time, it was revived in the context of case law on gender-related persecution. However, it was not until 1997 that the CE defined the concept as a group sharing common characteristics with social visibility. [21] On the basis of this definition, a number of social groups have been identified to take account of gender-related persecution: the social group of women who seek to avoid female genital mutilation (FGM), [22] the social group of women who refuse to perform FGM, [23] the social group of women who fight FGM [24] or who refuse to enter into forced marriage or who try to avoid it. [25] We have also seen the emergence of the social group of parents who want to prevent their child from undergoing FGM, [26] the social group of homosexual, [27] bisexual, [28] transsexual, [29] transgender [30] people, people sharing an LGBTI sexual orientation, [31] and the social group of women victims of a transnational network of trafficking in human beings for sexual exploitation and who have succeeded in escaping or have taken steps to do so. [32]

16 Thus, by interpreting the pre-existing grounds for persecution from a gender perspective, judges have managed to integrate gender-related persecution into the definition of refugee, despite the silence of the texts. Unfortunately, this remains far too incomplete.

Imperfect Integration of Gender-related Persecution

17 Despite the positive developments described above, gender-related persecution is still only partially taken into account for the purposes of recognition of refugee status.

18 On the one hand, reliance on political grounds remains limited to the defence of women’s rights and does not apply, at least as far as the case law stands, to the defence of the rights of sexual minorities. We have not found any trace of this in the case law. Moreover, these grounds remain tied to the notion of activism, since they require the assertion of these rights in general and impersonal terms in the public space, through denunciation in the media or participation in a demonstration or activist structure (Korsakoff, 2021: 414-417). Consequently, a woman who limits herself to denouncing an infringement of rights from an individual perspective, without public visibility, will not be recognised as a refugee on political grounds. This condition appears to be particularly detrimental to women applicants, precisely because they are not always allowed to intervene in the public space in their country of origin (Spijkerboer, 2003: 58).

19 On the other hand, the possibility of invoking the various above-mentioned social groups is conditional on the social visibility of these groups in the country of origin. Yet, the Cour nationale du droit d’asile (National Asylum Court — CNDA) has a very restrictive definition of this condition, since it only considers it in the negative. The group must transgress a social norm, whether legal or customary, and be subject to persecution that is constant, repeated and on a sufficiently significant scale. [33] In other words, it is not enough that the applicant is persecuted; all women, or homosexual, bisexual, transgender or intersex people in the country must be persecuted in order for the social group to exist and therefore for it to be possible to invoke it. In practice, this means that women and members of sexual minorities who do not come from such States are not eligible for refugee status on this basis, regardless of their individual fears.

20 Thus, in the current state of administrative jurisprudence, the definition of refugee still does not manage to fully grasp all forms of gender-related persecution raised in the case law.

21 As we can see, the political ambition announced in 2015 by the Minister of the Interior remains to be fully formalised in law. French law is clearly taking increasing account of persecution in the private sphere and persecution on the grounds of gender identity and sexual orientation for the purposes of recognising refugee status. However, this process remains insufficient to date, and its completion would certainly require adjustments by the legislator, combined with improved training of judicial actors on gender issues.