It was only in the 1980s that a number of claims were accepted on account of "membership in a particular social group", and the cases were limited to asylum-seekers from South East Asia. In addition, the individuals concerned were coming in a particular context, and under a resettlement quota. Recognized refugees often included Cambodians belonging to the "particular social group" of those persecuted by the Khmer Rouges regime (Thach So, 26.971, 12 July 1985), the social group of "bourgeoisie commercante" (Huynh Lao, 30.819, 5 December 1985), or those simply recognized because of a fear of persecution on account of their "social origins" (Rathphackdy, 28.154, 20 December 1985; Inthakhot, 21.207, 6 February 1986). While "membership in a particular social group" has been the stated ground for recognition, the cases nevertheless did not provide a more broad and precedent-making interpretation of the ground. Until that date, the best analysis of the ground which could have been made would have been that interpretation has to be limited to objective factors, such as social or familial circumstances.
A more detailed review of this ground, nevertheless, can be undertaken in the context of the later case of Aminata Diop (CRR No. 164078, 18 September 1991). The case involved a Mali woman who alledgedly left her country of origin in order to escape from family pressures requiring her to undergo a form of female genital mutilation, and the discrimination faced by women who have not undergone the procedure. The CRR in that case recognized that if the operation was undertaken at the hands of the authorities, or if they encouraged or even simply voluntarily tolerated such action, it would amount to persecution for women who refuse to submit to excision .(1) The CRR, however, went further and required that those seeking protection must have been personally exposed against their will.(2) Arguing that the asylum-seeker was not personally faced with the threat of excision, persecution was not found.
While the Diop case as such did not specifically address and decide upon the ground, an interpretation engaging "a particular social group" could be legitimately implied. In this context, it would be important to note that in the observations of the OFPRA in front of the CRR, they stated that women could be considered to be a member of a particular social group when they struggle against/face serious discrimination which hamper the enjoyment of their fundamental human rights, or threaten their life, liberty or physical integrity, and when this struggle has the potential of placing them in a situation of fear vis a vis the State authorities of their country of origin.(3) (Memoire publie, Doc. refugies No. 187, 20-29 June 1992). This interpretation has been the basis of recognized legal analysis of this case in France (F. Tiberghien, Chronique de Jurisprudence Française, Commission des Recours). It can thus be argued that for the first time, the CRR, which in the past had interpreted "particular social group" on the basis of objective characteristics, began, at least in the context of gender-related claims, to evaluate subjective elements (transgressing a social more) as well in interpreting "social group" by evoking the reference to "women who refuse to submit to excision".
Jurisprudence on this ground, however, remained in a flux. With respect to China's one couple one child policy, the CRR determined that the policy on population control was applied in a general and non-discriminatory manner, and thus was not the basis of refugee recognition. Chinese women, mothers of a number of children, and subjected to forced abortions and sterilizations were not found to make up a particular social group (CRR, SR, 8/7/93, Zhang; CRR, SR, 19/4/94, Wu). Such decisions appear have to have been confirmed by the Conseil d'Etat's (the highest administrative court, competent for legal recourse from CRR) decision that being parents to five children will not, notwithstanding the risks of repression to which they are exposed as a result, be regarded as members of a particular social group.(4) (Conseil d'Etat decision on Cheng, 29/13/93). In such a context, the fact that the individuals may face persecution was not deemed relevant in interpreting the "particular social group".
At the same time, a different interpretation was given by the CRR in the case of Algerian women (CRR, 22 July 1994, El Kebir). The Board held that as the provisions of Algerian legislation governing the fate of women in Algeria are applied without distinction to all the women of that country, the fact that some of these women take it upon themselves to dispute them does not permit the latter to be seen as belonging, for this sole reason, to a specific social group.(5) However, it went on to grant refugee status to the claimant who, having lived abroad for a long time, had returned to Algeria and faced discrimination, threats, and violence by Islamic elements to pressure her to submit to a certain way of life. The Board considered that there had been individual persecution deliberately tolerated by the State because of "an intentional abstention from any intervention."(6) As such, while recognizing that women who dispute the legislation which is applied without distinction to all women do not make up a particular social group, the fact that persecution had been founded allowed for such an interpretation and recognition in that case.
The present standing of the French jurisprudence has been recently more clearly elaborated in a 15 May 1998 decision of the CRR, in a case involving an Algerian transexual (Ourbih). The CRR first rejected the case in 1995 by concluding that the fact that the applicant is a transexual, and who as a result is marginalized in the Algerian society, is not enough for him to be viewed as being a member of a particular social group.(7) On review of the legal question, the analysis put forth to the Conseil d'Etat provided concrete guidance on interpretation of the social group ground (Commissaire du gouvernment:JD Combrexelle, 23 June 1997). The only requirement identified was for the group to have a social existence, which is that the group must be perceived and recognized by the society as a specific group.(8) The comments elaborate to state that the notion is a contingent one which varies in function from country to country, political regimes, as well as historical circumstances. It concludes that "a social group in the context of the Geneva Convention does not detach itself from the persecution to which it is an object; one could even say that it is the persecution which is the constitutive element in determining the social group."(9) As such, the analysis proposes that transexuals would only constitute a particular social group in countries whereby their sexual specificity leads to persecution.
The Conseil d'Etat, in tasking the CRR to again examine the circumstances of transexuals in Algeria, agreed with the above referred analysis: transexuals, because of common characteristics which sets them apart from others in the society, could constitute a particular social group, but only if they face persecution in the specific country concerned. Upon review, the CRR concluded that transexuals, because of their own common characteristics different from others, indeed are exposed to persecution in Algeria, and as such they constitute, under such conditions, a particular social group.(10)
While the latest French caselaw requires persecution for an interpretation of "a particular social group", it nevertheless arguably has liberalized the interpretation, with only limited requirements beyond the persecution: group of common characteristics setting it apart from the rest of society. One could conclude that at the present stage, membership in a particular social group, according to the most recent decision of 15 May 1998, is interpreted when it involves persecution, either on the part of the national authorities or of private individuals, that is encouraged or tolerated by the said authorities, and where the persecution is "founded on the common characteristics of this group".
1. "Que si l'exigence de cette operation etait le fait de l'autorite publique, ou si cette exigence etait encouragee ou meme seulement toleree de maniere volontaire par celle-ci, elle representerait une persecution des femmes qui entendent s'y soustraire, au sense des stipulations precitees de la convention de Geneve".
2. "a la condition que les interessees y aient ete personnellement exposees contre leur volonte".
3. "Des femmes peuvent être considerees comme appartenant a un certain groupe social lorsqu'elles luttent contre des discriminations graves entravant la jouissance de leurs droits fondamentaux ou menacant leur vie, leur liberte ou leur integrite physique et que cette lutte peut les placers dans une situation de craintes a l'egard de l'autorite etatique de leur pays d'origine".
4. "ne saurait, nonobstant les risques de repression auxquels ils sont exposes de ce fait, les faire regarder comme appartenant a un groupe social particulier".
5. "Considerant que les dispositions de la legislation algerienne qui regissent le sort des femmes en Algerie s'appliquent sans distinction a l'ensemble des femmes de ce pays; que le fait que certaines d'entre elles entendent les contester ne permet pas de regarder que ces dermieres appartiennent, pour cette seule raison, a une groupe social particulier aux sens des stipulations precitees a la Convention de Geneve."
6. "Considerant, toutefois, que les autorites locales, qui avaient eu connaissance des agissements dont la requerante avait ete victime, doivent, en raison de l'abstention deliberee de toute intervention de leur part, être regardees comme ayant tolere volontairement ces agiseements".
7. "Considerant, d'une part que la circonstance que M. Ourbih serait transsexuel et serait, de ce fait, marginalise au sein de la societe algerienne, ne saurait le faire regarder, au sens des stipulations precitees de la Convention de Geneve, comme appartenant a un groupe social."
8. "La seule condition est que ce groupe ait une existence sociale, c'est a dire qu'il soit percu et reconnu par la societe comme un ensemble specifique."
9. "Ainsi le group sociale au sens de la convention de Geneve ne se detache pas des persecutions dont il fait l'object, on pourrait meme dire que ce sont les persecutions qui constituent l'element constitutif determinant du groupe social."
10. "les transsexuels se trouvent actuellement en Algerie, en raison meme des caracteristiques qui leur sont propres, exposes de la part de larges fractions de la population, a des persecutions deliberement tolerees par les authorities, qu'ils constitutent dans ces conditions un groupe social au sens de l'article 1er, A de la convention de Geneve."