The applicant, a minor Iraqi girl, arrived in Belgium with her parents and they applied for international protection on 26 November 2018. Their applications were rejected by the Commissioner General for Refugees and Stateless Persons (CGRS) on 15 March 2021. The decisions were upheld by the Council for Aliens Law Litigation (CALL) on 15 July 2021 and 10 December 2021.
On 10 August 2021, when the applicant was five years old, she filed her own application for international protection. In her application, she stated that she had no future in Iraq, would face ostracism, and would have no rights in the country due to her birth out of wedlock in Switzerland, which prevented her from being registered with the Iraqi authorities. She also cited the risk of female genital mutilation if returned to Iraq and argued that her Westernization, having been born in Switzerland, raised in Belgium, and never having lived in Iraq, further endangered her. The CGRS rejected her application on 22 August 2022, deeming it inadmissible because she had not provided specific facts justifying an individual application separate from that of her parents. However, the CALL annulled this decision on 31 January 2023, instructing further investigation into her situation. Following additional hearings, the CGRS declared her application inadmissible again on 3 August 2023. An appeal was lodged against this decision.
At a hearing on 30 August 2024 before the CALL, the applicant's mother, acting as her legal representative, informed the council that her daughter had been abducted by her father a few days earlier and forcibly returned to Iraq. A complaint for international child abduction had been filed. The council determined that it was not prevented from examining the appeal simply because the applicant was no longer on the territory, as her return to Iraq was involuntary. Her father had forcibly taken her there without her mother's consent or waiting for the proceedings to conclude. The council noted that the applicant had not waived her request, either explicitly or implicitly.
The CGRS argued that the applicant's return to Iraq ended her application for international protection and made the appeal pointless. However, the council clarified that, in order to apply for international protection, an individual must be outside their country of origin. Since the applicant had been outside Iraq when submitting her application, the return did not negate her case. The council referred to the Law of 15 December 1980, which does not allow for the closure of a case if the return to the country of origin was involuntary. It also referenced the Geneva Convention's clauses on the cessation of refugee status as well as the EUAA’s practical guide on the application of cessation clauses (December 2021), emphasizing that an involuntary return would not lead to cessation.
The council concluded that it could continue examining the appeal, as the applicant's return to Iraq was not voluntary and thus did not prevent the continuation of the proceedings. The council observed that refugee status is declaratory in nature which means that the status is deemed to belong to that person from the day on which their application was submitted.
As regards the admissibility of the applicant’s separate application, the council disagreed with the arguments of the CGRS. In light of the case's specific circumstances and the information presented by both parties, the council believed there was a stark contrast between the freedom and rights the young applicant had experienced in Belgium, which had become part of her identity, and the life she would have faced if returned to Iraq. In Iraq, as a minor girl unaware of the prevailing norms, values, and behaviours in her country of origin, the council found, based on country information, that she would likely have encountered various forms of violence and discrimination. This situation led the council to conclude that the applicant's fear could be viewed as a fear of persecution due to her membership in a particular social group. Hereto, the council referred to CJEU judgment K and L v State Secretary for Justice and Security (C-646/21) in which the CJEU ruled that women, including minors, who share as a common characteristic the fact that they genuinely come to identify with the fundamental value of equality between women and men during their stay in a Member State may, depending on the circumstances in the country of origin, be regarded as belonging to a 'particular social group', constituting a 'reason for persecution' capable of leading to the recognition of refugee status.
Consequently, the applicant was granted refugee protection.