Germany - High Administrative Court, 19 September 2008, 1 LB 17/08

Facts:

The applicant is a Kurdish woman from Makhmur (a town between Mosul and Kirkuk). She came to Germany in September 2007 and applied for asylum, her application was rejected in November 2007. The Administrative Court of Schleswig-Holstein annulled this decision as far as the issue of subsidiary protection was concerned and required the authorities to grant protection from deportation under Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive.

According to the Administrative Court, an internal armed conflict took place in central and southern Iraq, and the security situation was unstable in the northern (Kurdish) provinces of Arbil, Dohuk and Sulaimaniya to an extent that civilians were at an individual risk of indiscriminate violence, even if the situation in these provinces did not amount to a civil war-like situation. To grant protection from deportation it was not necessary that the risk was found to be inescapable, it was sufficient if the risk presented more than a remote possibility. Furthermore, returnees from exile were at a far higher risk than other parts of the population.

The High Administrative Court granted leave for a further appeal ("Berufung") from the authorities in June 2006.

Decision & reasoning:

Within the definition of Art 1 of the Second Additional Protocol to the Geneva 1949 Conventions an internal armed conflict only takes place if an opposing party to a civil war has control over a part of the state's territory. The Federal Administrative Court additionally included "civil war-like conflicts and guerilla warfare" in the definition of an armed conflict in the meaning of Art 15 (c) of the Qualification Directive, if they are marked by a certain degree of "intensity and durability".

It was held that in Iraq, the high degree of organisation, which the Second Additional Protocol requires, was not met since a high number of very disparate actors are involved in the conflict, pursuing different goals and mostly acting in a part of the state's territory only. Even if one assumes that the situation in Iraq could be characterised as a civil war or a civil war-like situation, it still is a necessary requirement for the granting of protection from deportation that the applicant is affected individually. However, there is no evidence for the assumption that the applicant is specifically threatened by one of the parties to the conflict in Iraq. For example, there is no indication that she has adopted a “western” lifestyle. This is not likely in the light of the comparably short duration of her stay in Germany. Neither are there any indications that the claimant will be specifically threatened by criminal acts. Such a threat would not be significantly different from “general risks“ which normally must not be taken into account within an examination of Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive. The situation in Iraq at the moment does not present a risk for every returnee, especially since the conflict seems to become less intensive.

Individual “risk-enhancing” characteristics cannot be identified in the claimant's person. In spite of the high number of returnees (45,000 in the fourth quarter of 2007), no reports have become known which describe a threat to returnees in general. Neither is the “density of danger”, which represents the relationship between civilian victims of a conflict and the total number of the population, which is not that high in Iraq that it could justify the prognosis of a “densified“ risk.

The applicant is not at risk of "arbitrary"/indiscriminate violence, even if an interpretation of this term is based on the English version of the Directive as “indiscriminate“, "disproportionate", "violating humanitarian law", or on the French version as "random". And even if she would face a risk at her place of origin, she, being a Kurdish woman, would be able to evade this risk by moving to the Kurdish Autonomous Region.

Outcome:

The Administrative Court's decision was annulled (the applicant was not entitled to subsidiary protection).

Subsequent proceedings:

Unknown (the High Administrative Court did not grant leave for a further appeal (Revision) to the Federal Administrative Court).