The applicant, national of Ivory Coast, has been sexually abused by the spouse of her aunt, who grow her since her birth when her parents died. She gave birth to a baby as a result of sexual abuses, and her aunt harassed her after having found the truth about the father of the baby. She further entered into a 3 year homosexual relation with her best friend and upon discovery, the police arrested her. She escaped from custody, flew to Europe and arrived in Belgium. Her first application for international protection submitted in 2011 was rejected. She reapplied on 2 September 2020 and submitted medical documentation concerning her psychological treatment and a detailed medical report also to prove that she contracted HIV. She invoked to fear being abused for having HIV and also to commit suicide due to her serious psychological problems.  In addition, the applicant alleged that she could not continue to receive similar medical care and assistance as in Belgium. The CGRS rejected her application and stated that the applicant did not adduce any new elements or statements from her previous application, and on the new documents the determining authority held that they do change significantly the circumstances and international protection can not be granted. The CGRS issued an inadmissibility decision and concluded that the applicant can be returned to her country of origin, without violation of the non-refoulement principle.

The applicant contested the decision and requested the Council for Alien Law Litigation top grant het international protection. The CALL thoroughly analysed the case and found that the applicant presents a particular vulnerability for having HIV, being orphan and having left her country alone when she reached the age of majority, that she presents physical signs of sexual abuse and she suffers of major psychological issues. The Council examined the situation of HIV seropositive persons in Ivory Coast and it resulted from various reports that this category of persons is exposed to stigma and discrimination at social and family level, rendering the access to certain services (medical, legal) more difficult. However, the existence of anti-discrimination legislation is not enough and overall, the Council could not conclude that the mere fact of being HIV seropositive would justify international protection. The Council has further analysed the individual circumstances of the applicant and stressed the importance of a global analysis of the situation of applicants for international protection, as indicated also in the UNHCR Guide for Status Determination.

The Council did not agree with the CGRS on the point that medical reasons have no link with the criteria defined in Article 1 (A) 2 of the Geneva Convention.

The Council stated that in light of particular circumstances of the case and taking into account the situation in her country of origin, it is reasonable that the applicant fears persecution in case of return to her country. The Council further looked into the possibility for the applicant to seek protection from national authorities in Ivory Coast and held that, despite considerable efforts from the later, the HIV seropositive persons are subject to serious and repeated discrimination, thus the Council held that in light of the objective vulnerability of the applicant and in the absence of an effective protection and family support, the applicant would face discrimination upon return.

The Council further considered that HIV seropositive persons constitute a particular social group in Ivory Coast, that the applicant’s situation falls under the Geneva Convention and that in the absence of exclusion grounds, according to article 1 F of the Geneva Convention, the applicant shall be granted refugee status.