Acts of persecution
1. An act shall be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention where it is:
(a)
sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or
(b)
an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner to an act referred to in point (a).
2. Acts of persecution as qualified in paragraph 1 may, inter alia, take the form of:
(a)
acts of physical or mental violence, including acts of sexual violence;
(b)
legal, administrative, police or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c)
prosecution or punishment which is disproportionate or discriminatory;
(d)
denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e)
prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);
(f)
acts of a gender-specific or child-specific nature.
3. For an applicant to meet the definition of ‘refugee’ as set out in Article 3, point (5), there shall be a connection between the reasons for persecution referred to in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.
Reasons for persecution
1. The following elements shall be taken into account when assessing the reasons for persecution:
(a)
the concept of race shall, in particular, include considerations of colour, descent, or membership of a particular ethnic group;
(b)
the concept of religion shall, in particular, include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;
(c)
the concept of nationality shall not be confined to citizenship or lack thereof but shall, in particular, include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;
(d)
the concept of membership of a particular social group shall include, in particular, membership of a group:
(i)
whose members share or are perceived to share an innate characteristic or a common background that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it; and
(ii)
which has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
(e)
the concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.
Depending on the circumstances in the country of origin, the concept of membership of a particular social group as referred to in point (d) of the first subparagraph shall include membership of a group based on a common characteristic of sexual orientation. Gender related aspects, including gender identity and gender expression, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.
2. When assessing if an applicant has a well-founded fear of being persecuted, it is irrelevant whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.
3. When assessing if an applicant has a well-founded fear of being persecuted, the determining authority cannot reasonably expect that applicant to adapt or change his or her behaviour, convictions or identity, or to abstain from certain practices, where such behaviour, convictions or practices are inherent to his or her identity, to avoid the risk of persecution in his or her country of origin.
Cessation
1. A third-country national or a stateless person shall cease to be a refugee where one or more of the following apply:
(a)
the third-country national has voluntarily re-availed himself or herself of the protection of the country of nationality;
(b)
having lost his or her nationality, the third-country national or stateless person has voluntarily re-acquired it;
(c)
the third-country national or stateless person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d)
the third-country national or stateless person has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to a fear of being persecuted;
(e)
the third-country national can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality;
(f)
the stateless person is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence.
Points (e) and (f) of the first subparagraph shall not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality or, being a stateless person, of the country of former habitual residence.
2. In order to assess whether points (e) and (f) of paragraph 1, first subparagraph, apply, the determining authority shall:
(a)
take into account precise and up-to-date information obtained from relevant and available national, Union and international sources and, where available, the common analysis on the situation in specific countries of origin and the guidance notes referred to in Article 11 of Regulation (EU) 2021/2303;
(b)
have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of being persecuted can no longer be regarded as well-founded.
Exclusion
1. A third-country national or a stateless person shall be excluded from being a refugee where that third-country national or stateless person:
(a)
falls within the scope of Article 1(D) of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees; when such protection or assistance has ceased for any reason, without the position of that third-country national or stateless person being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, that third-country national or stateless person shall ipso facto be entitled to the benefits of this Regulation;
(b)
is recognised by the competent authorities of the country in which third-country national or stateless person has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or equivalent rights and obligations.
2. A third-country national or a stateless person shall be excluded from being a refugee where there are serious reasons for considering that that third-country national or stateless person:
(a)
has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)
has committed a serious non-political crime outside the country of refuge prior to that third-country national or stateless person’s admission as a refugee, which means the time of granting refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
(c)
has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble to and Articles 1 and 2 of the Charter of the United Nations.
3. Paragraph 2 shall apply to persons who incite or otherwise participate in the commission of the crimes or acts referred to therein.
4. Once the determining authority has established, based on an assessment of the seriousness of the crimes or acts committed by the person concerned and of that person’s individual responsibility, taking into account all the circumstances surrounding those crimes or acts and the situation of that person, that one or more of the relevant exclusion grounds laid down in paragraph 2 or 3 apply, the determining authority shall exclude the applicant from refugee status without performing a proportionality assessment linked to the fear of being persecuted.
5. As part of the assessment referred to in paragraph 4, when carrying out an examination under paragraphs 2 and 3 in relation to a minor, the determining authority shall take into account, inter alia, the minor’s capacity to be considered responsible under criminal law had the minor committed the crime on the territory of the Member State examining the application for international protection in accordance with national law on the age of criminal responsibility.
