Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08

Facts:

The applicant is an Iraqi national of Arab ethnicity and a Sunnite. He was born in Bagdad in 1983. He applied for asylum in Germany in 2001. In December 2001 he was granted refugee status by the German authorities. Following the downfall of Saddam Hussein's regime the authorities revoked the refugee status because of the change of circumstances in Iraq. The authorities also decided that no other forms of protection applied.

The Administrative Court  Sigmaringen overturned the authorities' decision in March 2006 but this decision was in turn annulled by the High Administrative Court Baden-Wuerttemberg (decision of 25 June 2007 – VGH A 2 S 863/06). The High Administrative Court upheld the revocation decision on the grounds that the applicant no longer had a well-founded fear of political persecution after the change of circumstances in Iraq. Neither was another form of protection to be granted as the applicant had only pointed to an on-going general risk in Iraq. Against this general risk he was sufficiently protected by a temporary suspension of deportations to Iraq, which the Federal State of Baden-Wuerttemberg had laid down in directives to the relevant authorities. In particular, subsidiary protection within the meaning of Art 15 (c) of the Qualification Directive was not to be granted. Indeed, the conflict in Central Iraq, particularly the conflict between Sunnis and Shiites, could be regarded as a partly civil war-like situation and therefore might meet the definition of an internal armed conflict. But the risks in the context of the conflict were the same for the whole population and therefore constituted a general risk. In contrast, an individual threat required a situation of danger which posed a special and concrete threat to the person concerned. This might be the case for members of political parties, journalists or for the intellectual elite.

The Federal Administrative Court granted leave for a further appeal (“Revision”) insofar as the issue of protection from deportation under Section 60 (2) to (7) Residence Act was concerned. 

Decision & reasoning:

In spite of minor deviations in wording, the provision of Section 60 (7) sentence 2 of the Residence Act is equivalent to Art 15 (c) of the Qualification Directive. The High Administrative Court found that general risks could not constitute an individual threat within the meaning of Art 15 (c) of the Qualification Directive, unless individual risk-enhancing circumstances exist. However, this court has already found in its decision of 24 June 2008 (10 C 43.07) that a general risk to which most civilians are exposed may cumulate in an individual person and therefore pose a serious and individual threat within the definition of Art 15 (c) of the Qualification Directive. At the time this court argued that the exact requirements would have to be clarified by the European Court of Justice. In the meantime, the European Court of Justice has clarified this question in Elgafaji C-465/07.

The conclusions by the European Court of Justice are essentially the same as the ones drawn by this court: In Elgafaji, the European Court of Justice found that the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat (para. 35). This is essentially equivalent to this court's requirement of an “individual accumulation” of a risk. Therefore, the European Court of Justice and this court are in agreement that an individualisation of general danger might on the one hand result from individual risk-enhancing circumstances. On the other hand this individualisation might also, in exceptional circumstances, occur if a situation is characterised by such a degree of risk that practically any civilian would be exposed to a serious and individual threat simply by his or her presence in the affected region.

As the High Administrative Court's findings did not conform with the case law of the European Court of Justice and the Federal Administrative Court, the case had to be remanded to the High Administrative Court. The High Administrative Court would have to examine whether a serious and individual threat to life and limb exists for the applicant in Iraq or in a relevant part of Iraq in the context of an armed conflict. It is not necessary that the internal armed conflict extends to the whole country. However, if the internal armed conflict affects only parts of the country, as a rule the possibility of a serious and individual threat may only be assumed if the conflict takes place in the applicant's home area, to which he would typically return.

If it is established in the new proceedings that an armed conflict in the applicant’s home area indeed poses an individual threat due to an exceptionally high level of general risks, it must be examined whether internal protection within the meaning of Art 8 of the Qualification Directive is available in other parts of Iraq.

Outcome:

The case was remanded to the High Administrative Court.

Observations/comments:

An English Translation (commissioned by the Federal Administrative Court, but not officially authorised) is available at:
http://www.bverwg.de/enid/90a215d0e466020f4d39a3fca8a475e6,0/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_9__8_m9.html