Persecution on The Grounds of Membership of a Particular Social Group
The thesis of David Kosař provides a detailed analysis of the various legal approaches to the interpretation of the term ‘membership of a particular social group’ and to specific issues arising under the refugee definition. Furthermore, this work is intended to provide legal interpretative guidance for legal practitioners, decision-makers and the judiciary dealing with refugee law in Czech Republic.
The core of this work consists of three essential parts. The first part, chapter 6, focuses on the interpretation of the term ‘persecution’. This chapter seems to be inevitable, because in civil law jurisdictions, most decision-makers place more emphasis on whether or not a risk of persecution exists than on the standard of a particular social group. This is especially the case of Czech Republic. In conclusion, the author of this thesis accepts the definition of persecution that consists of two separate but essential elements, namely the risk of serious harm and failure of protection. These two elements are described in detail below.
The second part, chapter 7, is dedicated to the ‘membership of a particular social group’ ground. At the beginning, the author briefly analyses the international standards with focus on ‘social group’ ground, namely travaux préparatoires of the 1951 Convention, the UNHCR interpretations, various guidelines and national legislation. With regard to the joining of Czech Republic to EU, the separate section 7.4 deals with the so-called European asylum acquis. Section 7.5 undertakes a detailed examination of State jurisprudence in order to provide a basis for discussion of particular issues relating to the definition of membership of a particular social group. In order to keep balance between common and civil law jurisdictions, the both categories are represented by four States. In section 7.6, interpretive issues that have been of concern to adjudicative bodies are identified. The core inquiry between ‘protected characteristics’ and ‘social perception’ approach is discussed in section 7.7. This section in its crucial part rejects an adjudicatory standard for ‘membership of a particular group’ proposed by Alexander Aleinikoff and UNHCR. Section 7.8 briefly considers an issue that is frequently important in social group cases – the so-called ‘nexus’ requirement that persecution must be ‘for reasons of’ one of the Convention grounds. Finally, a concluding section summarizes the main points of this chapter and suggests a modified definition of a ‘particular social’ group.
Finally, the chapter 8 deals with the Czech jurisprudence on ‘persecution’ and the ‘membership of a particular social group’ ground. More specifically, both the case law of Czech courts and decision-making practice of Ministry of Interior are covered. In this section, the previous analysis of a ‘particular social group’ ground is applied to three kinds of social group claims which adjudicators are faced today – namely homosexuality, female genital mutilation and past experience case. Naturally, the application is pursued with due regard to the specific case law in Czech Republic.
The core of this work consists of three essential parts. The first part, chapter 6, focuses on the interpretation of the term ‘persecution’. This chapter seems to be inevitable, because in civil law jurisdictions, most decision-makers place more emphasis on whether or not a risk of persecution exists than on the standard of a particular social group. This is especially the case of Czech Republic. In conclusion, the author of this thesis accepts the definition of persecution that consists of two separate but essential elements, namely the risk of serious harm and failure of protection. These two elements are described in detail below.
The second part, chapter 7, is dedicated to the ‘membership of a particular social group’ ground. At the beginning, the author briefly analyses the international standards with focus on ‘social group’ ground, namely travaux préparatoires of the 1951 Convention, the UNHCR interpretations, various guidelines and national legislation. With regard to the joining of Czech Republic to EU, the separate section 7.4 deals with the so-called European asylum acquis. Section 7.5 undertakes a detailed examination of State jurisprudence in order to provide a basis for discussion of particular issues relating to the definition of membership of a particular social group. In order to keep balance between common and civil law jurisdictions, the both categories are represented by four States. In section 7.6, interpretive issues that have been of concern to adjudicative bodies are identified. The core inquiry between ‘protected characteristics’ and ‘social perception’ approach is discussed in section 7.7. This section in its crucial part rejects an adjudicatory standard for ‘membership of a particular group’ proposed by Alexander Aleinikoff and UNHCR. Section 7.8 briefly considers an issue that is frequently important in social group cases – the so-called ‘nexus’ requirement that persecution must be ‘for reasons of’ one of the Convention grounds. Finally, a concluding section summarizes the main points of this chapter and suggests a modified definition of a ‘particular social’ group.
Finally, the chapter 8 deals with the Czech jurisprudence on ‘persecution’ and the ‘membership of a particular social group’ ground. More specifically, both the case law of Czech courts and decision-making practice of Ministry of Interior are covered. In this section, the previous analysis of a ‘particular social group’ ground is applied to three kinds of social group claims which adjudicators are faced today – namely homosexuality, female genital mutilation and past experience case. Naturally, the application is pursued with due regard to the specific case law in Czech Republic.
10. 12. 04
Zdroj: migrationonline.cz