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Strasbourg litigants not a “particular social group” under the Refugee Convention


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C‑652/16 Nigyar Rauf Kaza Ahmedbekova and Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite is a novel attempt to introduce the status of being involved in a case before the European Court of Human Rights as a ground on which refugee status can be claimed. The Court of Justice of the European Union rejected that argument but did rule that it would be a relevant factor when considering the possibility of persecution on the ground of political opinion.

Most of the judgment relates to the Procedures Directive (2013/32/EU). The UK has opted out of this directive so those rulings are of minimal relevance to domestic law.

Mrs Ahmedbekova is an Azerbaijani national who claimed asylum in Bulgaria with her son. She fears return to Azerbaijan for a number of reasons relating to her political opinions. These included her participation in a complaint brought against Azerbaijan before the European Court of Human Rights. The judgment does not give details about that case, but does state that Mrs Ahmedbekova claimed to be involved in organisations which defend human rights in Azerbaijan.

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The Bulgarian court referred the question of whether being a litigant before the European Court of Human Rights would qualify as being a member of a particular social group under the Refugee Convention. Of course, that in itself would just be the first step: Mrs Ahmedbekova would also have to show that she had a well-founded fear of being persecuted because of her membership of that social group.

The Court of Justice rejected this argument without hesitation, but did stress the relevance of Mrs Ahmedbekova’s human rights work when considering whether she should be granted refugee status because of fear of persecution based on her political opinion:

87. Where there are valid grounds to fear that such is the case, it must be concluded that an applicant is subject to a serious and proven threat of persecution for the expression of his opinions on the policies and methods of his country of origin. As is clear from the wording of Article 10(1)(e) of Directive 2011/95, the concept of ‘political opinions’ in that provision covers such a situation.

88. By contrast, the class of persons to which the applicant for international protection belongs, where such is the case, through her involvement in bringing a claim before the European Court of Human Rights, cannot in principle be regarded as a ‘social group’ within the meaning of Article 10(1)(d) of Directive 2011/95.

89. For it to be found that there is a ‘social group’, within the meaning of that provision, two cumulative conditions must be satisfied. First, members of that group must share an ‘innate characteristic’, or a ‘common background that cannot be changed’, or share a characteristic or belief that is ‘so fundamental to identity or conscience that a person should not be forced to renounce it’. Second, that group must have a distinct identity in the relevant country, because it is perceived as being different by the surrounding society (judgment of 7 November 2013, X and Others, C199/12 to C201/12, EU:C:2013:720, paragraph 45). Subject to verification by the referring court, those cumulative conditions do not appear to be satisfied in the case in the main proceedings.

This result is unsurprising and reflects the reality that Mrs Ahmedbekova’s asylum claim already falls squarely within one of the Refugee Convention grounds. It was completely unnecessary for the Bulgarian court to ask whether her fear was also based on membership of a particular social group.


Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers