The applicant, national of Ivory Coast, has been sexually abused by the spouse of her aunt, who took care of her since her birth when her parents died. As a result of the sexual abuse, she gave birth to a child, and her aunt harassed her after having found the truth about the father of the child. 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 a fear of being abused for having HIV and of commiting 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 did not change significantly the circumstances and so international protection cannot 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 (CALL) to grant her international protection. CALL analysed the case and found that the applicant presented a particular vulnerability as she had HIV, she was an orphan and had left her country alone when she reached the age of majority, she presented physical signs of sexual abuse and she suffered from major psychological problems. The Council examined the situation of HIV seropositive persons in Ivory Coast and it resulted from various reports that this category of persons was exposed to stigma and discrimination at social and family level, rendering the access to certain services (medical, legal) more difficult. The existence of anti-discrimination legislation was not considered sufficient and overall, the Council could not conclude that the mere fact of being HIV seropositive would justify international protection. The Council 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 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 the particular circumstances of the case and taking into account the situation in her country of origin, it was reasonable that the applicant feared 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 the Ivory Coast and held that, despite considerable efforts from the authorities, HIV seropositive persons were 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, as although being infected with the AIDS virus is not an innate characteristic, does not result from common characteristics, is not related to sexual orientation and does not constitute a fundamental element of one's identity, seropositivity is an "inherent characteristic that the applicant cannot dispose of”, shared with other seropositive people as “a common medical history that cannot be undone”. In support of this conclusion, the court referred to the CJEU judgment concerning the conditions to be fulfilled for belonging to a particular social group (Minister voor Immigratie en Asiel v X, Y, and Z v Minister voor Immigratie en Asiel, C-199/12, C-200/12, C-201/12 , ECLI:EU:C:2013:720, 7 November 2013), noting that the conditions provided there are not exhaustive.

Thus, CALL provided refugee protection to the applicant.