Germany - Federal Administrative Court, 7 July 2011, 10 C 26.10
Keywords:
| Keywords |
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Exclusion from protection
Description
Exclusion from being a refugee on any of the grounds set out in Article 12 of the Qualification Directive or exclusion from being eligible for subsidiary protection on any of the grounds set out in Article 17 of the Qualification Directive. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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Acts contrary to the purposes and principles of the UN
Description
Extreme activity with an international dimension committed by persons who have been in positions of power in a state or state-like entity and which attacks the very basis of the international community's coexistence. May include crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights. |
Headnote:
This case concerned the revocation of asylum and refugee status in the case of a former official of the Kurdistan Workers' Party (PKK) (following the European Court of Justice case of Federal Republic of Germany v B (C-57/09) and D (C-101/09), 09 November 2010).
Facts:
The applicant is a former senior PKK official. He left the organisation because of disagreements with its leadership over political issues. He applied for asylum in Germany in 2001 and stated that he was at risk of persecution by both the PKK and the Turkish state. The authorities granted asylum (under German law) and refugee status.
In January 2002 a new act to combat terrorism ("Terrorismusbekämpfungsgesetz") came into force. Subsequently, the authorities revoked the applicant's asylum and refugee status in May 2004. The authorities argued that the applicant as a former senior member of the PKK was partly responsible for its terrorist activities. He was suspected of having committed a serious non-political crime and of having supported a terrorist group.
The Administrative Court Gelsenkirchen, confirmed by the High Administrative Court Nordrhein-Westfalen, annulled the revocation. The High Administrative Court found in its decision of 27 March 2007 that the applicant no longer posed a risk since he had dissociated himself from his former objectives. In case of a return to Turkey he was at risk of being tortured.
On 25 November 2008, the Federal Administrative Court referred the case to the European Court of Justice for a preliminary ruling concerning the interpretation of Art 12.2 (b) and (c) of the Qualification Directive. The European Court of Justice had issued its judgment on 09 November 2010 (Federal Republic of Germany vs. B (C-57/09) and D (C-101/09)).
Decision & reasoning:
In decisions on revocation, the new legislation (transposing the Qualification Directive) is applicable even if refugee status has been granted before the Qualification Directive came into force. Under the new legislation, the revocation of refugee status is obligatory in case of exclusion (Art 12 of the Qualification Directive).
Since the revocation does not take effect in the past, but only in the future, it does not result in a retroactive reassessment of the substance of the case (which would have amounted to a violation of the principle of non-retroactivity). Therefore, the applicant cannot claim that he had a legitimate interest in the continuity of his refugee status. Furthermore, the negative effect of the revocation is limited since the authorities might grant protection from deportation status if there is a risk of treatment in violation of Art 3 of the European Convention on Human Rights in Turkey.
Therefore, the decisive question is whether an exclusion clause is applicable regarding the applicant. In order to answer this question, the findings of the High Administrative Court were not sufficient.
Under the jurisdiction of the European Court of Justice, concurred with by the Federal Administrative Court, any risk a person poses currently (i.e. at the time of the decision-making) has to be taken into consideration under Art 14.4 and Art 21.2 of the Qualification Directive, while grounds for exclusion under Art 12.2 of the Qualification Directive are intended as a penalty for acts committed in the past, regardless of whether the person concerned still poses a risk. In this context the European Court of Justice had ruled that it is not necessary to undertake a proportionality assessment, since this has already taken place within the assessment of the seriousness of the act committed by the person concerned and of that person’s individual responsibility.
Regarding the exclusion clause of Art 12.2 (c) of the Qualification Directive, the High Administrative Court proceeded from the assumption that an individual, in order to have committed an act contrary to the principles of the United Nations, must have been in a position of power in a United Nations member State and must have been instrumental to his State’s infringement of these principles (according to Nr. 163 UNHCR handbook). However, such a restrictive interpretation is no longer permissible following the decision of the European Court of Justice, in particular its findings on acts of international terrorism. This follows from Recital 22 of the Qualification Directive, which refers to resolutions of the UN Security Council on anti-terrorist measures. It can be concluded from these resolutions that the UN Security Council holds the opinion that terrorist acts are always contrary to the purposes and principles of the United Nations, regardless of the participation of a state. The European Court of Justice therefore concluded that persons who participate in terrorist acts can fulfill the criteria of Art 12.2 (c) of the Qualification Directive. Within the scope of this provision, neither the existence of a risk at present has to be established, nor is it necessary that a renewed proportionality assessment is undertaken.
The High Administrative Court has to reassess whether the applicant falls within the scope of Art 12 of the Qualification Directive. To fulfill this assumption it is not sufficient if the person concerned is or has been a member of a group mentioned in the so-called EU terror list and supports, or has supported, its armed struggle. In fact, it has to be examined individually whether the acts in question constituted serious non-political crimes and if the person concerned is individually responsible for these acts. A senior position in the organisation might be an indication; however, it does not render an individual assessment unnecessary. The same applies to the exclusion ground "acts contrary to the purposes and principles of the United Nations".
Regarding the exclusion ground laid down in Art 12.2 (b) of the Qualification Directive, the High Administrative Court will have to assess if the applicant is criminally liable for criminal acts of the PKK (as perpetrator, instigator, or accomplice).
The exclusion ground laid down in Art 12.2 (c) of the Qualification Directive does not require that criminal acts have been committed, because terrorist acts are always contrary to the purposes and principles of the United Nations, regardless of their relevance in terms of criminal law. Therefore, assistance in the preparation of terrorist acts is a sufficient reason for the application of this exclusion ground. However, it is also necessary to assess the applicant’s contribution individually in this respect.
Outcome:
The case was referred back to the High Administrative Court/Oberverwaltungsgericht Nordrhein-Westfalen.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| TFEU |
| TFEU - Art 288 (3) |
| UN Charter |
| UN Charter - Preamble |
| UN Charter - Art 1 |
| UN Charter - Art 2 |
Cited Cases:
| Cited Cases |
| UK - Supreme Court, 17 March 2010, JS (Sri Lanka) v Secretary of State for the Home Department, [2010] UKSC 15 |
| Germany - Federal Administrative Court, 31 March 2011, 10 C 2.10 |
| Germany - Federal Administrative Court, 24 February 2011, 10 C 3.10 |
| CJEU - C-226/08 Stadt Papenburg v Bundesrepublik Deutschland |
| UK - MH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ 226 |
| Germany - Federal Administrative Court, 11 September 2007, 10 C 8.07 |
| Germany - Federal Administrative Court, 25 November 2008, 10 C 46.07 |
| Germany - Federal Constitutional Court, 30 June 2009, 2 BvE 2.08 |
| Germany - Federal Administrative Court, 1 June 2011, 10 C 25.10 |
| Germany - Federal Constitutional Court, 13 March 2007, 1 BvF 1/05 |
| Germany - Federal Constitutional Court,12 March 2008, 2 BvR 378/05 |
| Germany - Federal Constitutional Court, 6 July 2010, 2 BvR 2661/06 |
| CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D |
Follower Cases:
| Follower Cases |
| Germany - High Administrative Court of Sachsen, 12 December 2011, A 3 A 292/10 |
| Germany - Federal Administrative Court, 4 September 2012, 10 C 13.11 |
Other sources:
- UN Security Council Resolutions 1373 (2001) and 1377 (2001)
- Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP)
- Council Common Position of 17 June 2002 updating common position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2002/340/CFSP (2002/462/CFSP)
- Prof. Dr. Kay Hailbronner, Das Grundrecht auf Asyl - unverzichtbarer Bestandteil der grundgesetzlichen Wertordnung, historisches Relikt oder gemeinschaftsrechtswidrig?, in: Zeitschrift für Ausländerrecht (ZAR), 2009, S. 369ff