Germany - High Administrative Court of Bavaria, 11 January 2010, 9 B 08.30223

Facts:

The applicant came to Germany in 1989 as a student. In March 2000 he was granted refugee status because of a risk of political persecution due to his political activities in exile. In 2001 the applicant became president of the Forces Démocratiques pour la Libération du Rwanda (FDLR), a Hutu organisation which had armed forces at its command in the Eastern regions of the Democratic Republic of the Congo.

In February 2006 the authorities revoked the refugee status, arguing that there were grave reasons to assume that the applicant as president of the FDLR had been responsible for war crimes and crimes against humanity in the Democratic Republic of the Congo. Furthermore, the FDLR had been responsible for acts contrary to the purposes and principles of the United Nations since it had not adhered to an arms embargo imposed by the UN. In this context the applicant's name had been added to a list of the Sacntions Committee of the UN Security Council.

The Administrative Court annulled the authorities' decision in December 2006. According to the Administrative Court the authorities' statements on the crimes of the FDLR and on the applicant's responsibility did not provide a sound basis for the revocation. Furthermore, the applicant had distanced himself from those crimes in a credible manner. The authorities applied for a further appeal against the Administrative Court's decision.

Decision & reasoning:

The further appeal (Berufung) by the authorities to the High Administrative Court was successful. The Administrative Court's decision to annul the revocation decision was unlawful. The Court stated:

At first, the question has to be clarified whether an exclusion ground can still lead to the revocation of refugee status if it occurred after the recognition. The wording of the Qualification Directive, i.e. the use of the past tense in (the German version of) Art. 12 (2) (a) of the Qualification Directive, suggests that the exclusion ground must have existed before the recognition of refugee status took place. However, the relevant provision in the present case is Art. 14 (3) (a) of the Qualification Directive which deals with revocation. This provision clearly states that refugee status has to be revoked if a relevant reason has occurred after the recognition (“...is excluded”). The 1951 Refugee Convention also includes the concept that a person may be “unworthy of asylum”.

The position of president of the FDLR in itself involves a shared responsibility of the applicant for the organisation's acts. Accordingly, he has to be regarded as a person who “otherwise participated” within the meaning of Art. 12 (3) of the Qualification Directive. This term goes further than what is understood as the category of persons participating in a crime (as perpetrators or participants) in German Penal Law as it includes other forms of supporting a crime within an organisation.

It is of no significance for the criminal character of the FDLR's actions whether or not the opposing parties to the conflict also commit crimes against the civilian population. The acts of the FDLR have to be classified as war crimes and crimes against humanity within the meaning of the Statute of the International Criminal Court.

Furthermore, the exclusion ground of acts contrary to the purposes and principles of the United Nations is applicable as well. In contrast to the authorities' opinion this cannot automatically be deduced from the fact that the applicant's name has been added to the list of the UN Sanctions Committee. It is not clear on which basis names are added to this list and there is no legal remedy against the addition of someone's name. Nevertheless, the war crimes and crimes against humanity as referred to above are contrary to the aims of keeping the peace and respecting human rights which are basic purposes of the United Nations according to the Charter of the UN (1945). This exclusion ground may primarily be applicable to states. However, the FDLR constitutes a state-like entity in Eastern Congo and has control over territories. Therefore, this exclusion ground has to be extended to the acts of the FDLR and to the applicant as well.

Outcome:

The decision by the Administrative Court of Ansbach was annulled. The revocation of refugee status was lawful. However, a further appeal to the Federal Administrative Court (Revision) is granted due to fundamental significance of the case.

Subsequent proceedings:

The Federal Administrative Court upheld the High Administrative Court's decision on 31 March 2011 (10 C 2.10).

Observations/comments:

This decision was confirmed by the Federal Administrative Court in its decision of 31 March 2011, 10 C 2.10 (asyl.net, M18634).

Other sources:

• Kai Hailbronner, Ausländerrecht (Alien Law, Commentary)
• Michael Funke-Kaiser, Gemeinschaftskommentar zum Asylverfahrensgesetz (Commentary on the Asylum Procedure Act)
• Reinhard Marx, Asylverfahrensgesetz (Asylum Procedure Act, Commentary), 2009