Germany - High Administrative Court of Bavaria, 21 October 2010, 13a B 08.30304

Facts:

The applicant was born in 1980 and is an Iraqi citizen of Kurdish ethnicity and a Sunnite. He applied for asylum in Germany in 2001 and was granted refugee status in February 2002. Refugee status was revoked after the downfall of the Saddam Hussein regime in October 2005. An appeal against the revocation was dismissed both by the Administrative Court and by the High Administrative Court.

The Federal Administrative Court annulled this decision on 24 June 2008 (asyl.net/ M13877) and referred the case back to the High Administrative Court to re-examine the issue of prohibition of deportation under Section 60 (2-7) of the Residence Act. The Federal Administrative Court found that the High Administrative Court had denied protection against deportation under Section 60 (7) (2) of the Residence Act / Art 15 (c) of the Qualification Directive because the conflict in Iraq did not take place nationwide. In doing so, the High Administrative Court had set the standards for the definition of such conflict too high. Furthermore, its finding regarding access to internal protection was not based entirely on facts. Therefore, the question of whether there is an internal armed conflict in Iraq and if so whether the applicant can obtain internal protection had to be considered again.

Decision & reasoning:

At the time of the decision the applicant had a permanent residence permit. Nevertheless he was, as a matter of principle, entitled to claim an additional legal status under Art 18 of the Qualification Directive. However, it was held that the requirements for this additional status were not met by the applicant.

According to Art 1.1 of the Additional Protocol II (to the Geneva Conventions of 12 August 1949), an internal armed conflict in terms of international law "takes place between dissident armed forces or other organised armed forces [...] which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol."

In contrast, Art 1 (2) of the Additional Protocol II excludes "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature" from the definition of an armed conflict.

Internal crises that lie between the two abovementioned situations can still have the character of armed conflicts under Art 15 (c) of the Qualification Directive. However, such a conflict has to be characterised by a certain degree of intensity and durability. Typical examples are civil war-like conflicts and guerilla warfare.

Based on the case law of the Federal Administrative Court (decision of 24 June 2008, asyl.net M13877), it has to be established whether a conflict has the necessary characteristics of the Convention of 1949 in order to meet the requirements of the prohibition of deportation status. In case of an internal armed conflict under Art 1 (1) Additional Protocol II, these conditions are fulfilled but not in case of situations as described in Art 1 (2) of Protocol II. Concerning situations between these two definitions, the degree of intensity and durability must be examined individually. In this context, according to the Federal Administrative Court, the courts also have to take into consideration further interpretations of the concept of "internal conflict", especially the jurisdiction of the international criminal courts. An internal conflict may also exist if it only affects a part of a state's territory. This has to be concluded from the fact that the concept of an internal protection alternative may also be applied to subsidiary protection.

Normally, internal armed conflicts are not characterised by a sufficient "density of danger" to allow for the assumption that all inhabitants of the affected region are seriously and individually at risk, unless it can be established that there are individual risk-enhancing circumstances. Risks which are simply a consequence of the conflict, such as the worsening of the supply situation, must not be taken into consideration when examining the density of danger.

In the present case, the necessary requirements are not met since the density of danger in the applicant’s home region, Kirkuk or Tamin respectively, does not justify the statement that virtually all civilians are at a significant and individual risk simply because of their presence in that area. This can be concluded from the proportion of victims of the conflict as compared to the number of inhabitants. The province of Tamin, including its capital Kirkuk, has 0.9 million inhabitants. Based on figures of Iraq Body Count, 100 attacks took place causing the death of about 290 persons in 2009. As a result, the statistical risk for each inhabitant of falling victim to a deadly attack was 0.032 %, or 0.13 % respectively for the risk of being killed or injured in an attack. There are no well-founded reasons to assume that the security situation will deteriorate significantly or that there is a high unrecorded number of persons injured in attacks.

There are also no circumstances that might aggravate the claimant's individual risk, since as a Sunnite Kurd he belongs to the majority population of that area and he does not belong to a profession with a particular risk.

Although returnees are affected by criminal acts to a disproportionate degree, this does not constitute a reason for protection from deportation status under Art 15 (c) of the Qualification Directive, since criminal acts which are not committed in the context of an armed conflict do not fall into the scope of this provision.

Outcome:

The further appeal to the High Administrative Court was declared unsubstantiated.

Subsequent proceedings:

A further appeal ("Revision") to the Federal Administrative Court was granted but the case was declared settled afterwards by consent of the parties to the proceedings. The Federal Administrative Court declared the decisions of the Administrative Court and the High Administrative Court as ineffective without further discussion of the substance of the matter (Federal Administrative Court, 21.01.2010, 10 C 12.10).