Germany – Federal Administrative Court, 14 July 2010, 10 B 7.10

Facts:

The applicant was an Afghan national and was 40 years old. He originated from Logar province south of Kabul. Following the rejection of his asylum application and the rejection of an appeal at an Administrative Court, his further appeal was partly successful as the High Administrative Court Hessen required the authorities to grant subsidiary protection because of a significant individual risk due to an armed conflict (Section 60 (7) (2) Residence Act/Art 15 (c) of the Qualification Directive) in his home province of Logar.

The High Administrative Court decided that there was no internal protection alternative to Kabul, since the applicant would not be in a position to safeguard his means of existence because, among other reasons, he could not make use of real estate which he might still own in his home region for this purpose (see High Administrative Court, 25 January 2010, 8 A 303/09.A).

This argument was the subject of the further appeal/"Revision” to the Federal Administrative Court.

Decision & reasoning:

The further appeal, filed by the authorities, was successful. Examining the conditions of subsidiary protection (Section 60 (7) Sentence 2 Residence Act / Art 15 (c) of the Qualification Directive), the High Administrative Court proceeded from the assumption that the applicant could not be expected to stay in another part of his country of origin (Section 60 (7) Residence Act, Art 8 of the Qualification Directive). The High Administrative Court found that in case of deportation even young, single men in the Kabul region could face so-called extreme risks if it was not ensured that they could safeguard their means of existence under humane conditions. This could be the case if the returnees did not have a sufficient school or vocational education and did not own property and real assets and, especially, if they could not rely on a functioning network of family and friends. The High Administrative Court considered that this also applied to the forty year old applicant who originated from a rural area south of Kabul.

Thereby, in its assessment of the applicant’s possibility of  safeguarding his means of existence, the High Administrative Court  “tacitly” presupposed that the applicant's statements reached a standard which meant that the court was fully convinced of those statements. However, its findings regarding the real estate could also allow for the opposite conclusion, in particular that the applicant is the owner of real estate which he could utilise. The Federal Administrative Court found that this constituted a procedural error because either the conclusion of the High Administrative Court was in contradiction to the substance of the case or the High Administrative Court had employed an inaccurate standard of proof (by not further examining the substance of the case).

The case was referred back to the High Administrative Court. When examining a significant individual risk in the context of an internal armed conflict (Section 60 (7) sentence 2 Residence Act/Art 15 (c) of the Qualification Directive), the High Administrative Court should have complied with the requirements set out in the decision of the Federal Administrative Court of 27 April 2010 - BVerwG 10 C 4.09 - paragraph  33. Accordingly, it is necessary to at least approximately establish the total number both of civilians in the area who are affected by the conflict and of the acts of indiscriminate violence from parties involved in the conflict which impact on the health and life of civilians in that area. Furthermore, an overall assessment is necessary taking into account the number of victims and the severity of harm (deaths and injuries).

Outcome:

The case was referred back to the High Administrative Court of Hessen to address the questions raised in this decision.

Observations/comments:

Cf. High Administrative Court, 25 January 2010, 8 A 303/09.A on EDAL.