Germany – High Adminstrative Court Rheinland-Pfalz, 12 August 2008, 6 A 10750/07.OVG

Facts:

The applicant’s first asylum application was rejected in August 2003. In September 2005 he filed a subsequent application. On 25 October 2005 the German authorities rejected the subsequent application and refused to reopen the asylum procedure.

The Administrative Court Neustadt an der Weinstraße granted his claim in part and decided that deportation was prohibited under Section 60 (7) of the Residence Act because of a situation of extreme risks. According to the court, a returnee like the applicant would, with a degree of probability approaching certainty, face an almost hopeless situation because of the poor humanitarian situation.

The authorities applied for admission of a further appeal against this decision and argued that single male returnees, who are able to work, would not face such a situation of extreme risks.  

Decision & reasoning:

The High Administrative Court agreed with the authorities' submissions. Despite the desperate security and supply situation and that the applicant had no relatives in Kabul anymore and does not seem to be in contact with other people in Afghanistan, he would not face an extreme risk because of destitution. As a result of his school education, his vocational training as a cook, completed in Germany, and his local knowledge he would be able to make a living through employed or self-employed work. The High Administrative Court assumed that he had savings from his time of employment in Germany and thus would be able to overcome the initial difficulties. Moreover, they found that the security situation in Afghanistan did not result in a situation of extreme risks for every single returnee to Kabul, particularly since the district, where the applicant had lived before, is not considered to be insecure (based on a UNHCR-report of 25 February 2008, “Security situation in Afghanistan”).

Furthermore the applicant is not eligible for subsidiary protection based on Art 15 (c) of the Qualification Directive. Eligibility for subsidiary protection requires, among other things, that valid reasons are put forward for the assumption that, in case of return, there is a real risk to be subject to serious harm, for example a serious individual threat to one's life or physical integrity as a result of indiscriminate violence in situations of international or internal armed conflicts. Such an armed conflict does not necessarily have to take place nationwide. However, as a principle, a general risk is not sufficient for granting subsidiary protection under Art 15 (c) of the Qualification Directive, which requires an individual risk, resulting from indiscriminate violence in situations of armed conflicts. Risks resulting from armed violence, which is used indiscriminately and is not being aimed at an individual person, however, typically have to be classified as general risks.

General risks can only constitute a serious and individual threat if valid reasons in terms of Art 2 (e) of the Qualification Directive are being put forward for the assumption that in case of return, there is a real risk of being affected by this indiscriminate violence. Such reasons, however, have not been submitted. Putting aside the fact that the indiscriminate violence in situations of an armed conflict, as shown above, are not the focus of threat to the civilian population in Kabul, the applicant himself did not submit anything indicating a serious individual risk of becoming a victim of arbitrary (indiscriminate) violence within the armed conflict in his home country. The fact that he was hostile to the Taliban before he left Afghanistan does not allow for the conclusion that in case of his return his life or his physical integrity would be seriously and individually at risk as a result of indiscriminate use of force in the context of an armed conflict.  

Outcome:

The judgment of the Administrative Court Neustadt was annulled and the appeal against the decision of the authorities was dismissed. Therefore, the authorities are not obliged to reopen the asylum procedure.

Other sources:

Michael Funke-Kaiser, Der Prognosemaßstab des Art. 15 lit. c Qualifikationsrichtlinie und die allgmeine Gefahr (Standard of probability of Article 15 (c) Qualification Directive and General risk), in: InfAuslR 2008, S. 90ff.;

Kerstin Müller, Subsidiärer Schutz (Subisidiary protection), in: Asylmagazin 5/2008, S. 8ff.;

Dr. Reinhold Marx, Die Verdeutschung der EU-Richtlinien zum Aufenthalts- und Asylrecht (Germanization of EU-Directives regarding residnce and asylum laws), in: InfAuslR 2007, S. 413ff.;

Kay Hailbronner, Die Qualifikationsrichtlinie und ihre Umsetzung im deutschen Ausländerrecht (The Qualification Directive and its implementation in German law), ZAR 7/2008, S. 214 ff.