Germany - Federal Administrative Court, 7 September 2010, 10 C 11.09
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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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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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 harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
Headnote:
The facilitated standard of proof under Art. 4.4 of the Qualification Directive may be applied to the examination of subsidiary protection. Under German law, subsidiary protection is not excluded on the ground that the applicant is a “danger to the community”.
Facts:
The applicant in this case was of Kurdish ethnicity. He applied for asylum in Germany in December 1990, claiming that he had been at risk of political persecution in Turkey as he had been suspected of being a supporter of the PKK. The Administrative Court of Cologne obliged the authorities in 1995 to grant protection status. The Administrative Court found that the applicant was at risk of imprisonment and torture in Turkey.
In December 2000 the applicant was sentenced to seven years in jail in Germany for aggravated robbery in two cases. In October 2005 the authorities revoked refugee status on the grounds that the applicant had to be regarded as a “danger to the community” under Section 60 (8) (1) of the German Residence Act. Furthermore, the authorities argued that the applicant was not entitled to other forms of protection (prohibition of deportation) as he would not be at risk of torture or other treatment violating his human rights in Turkey.
An Administrative Court initially annulled the revocation, but the High Administrative Court of Nordrhein-Westfalen declared it to be lawful in July 2008. The High Administrative Court found that there were no indications to support the assumption that the applicant would still be at risk of torture with considerable probability. In particular, there were no indications that the Turkish authorities had registered the applicant as a supporter of the PKK or that they were searching for him.
The Federal Administrative Court granted leave for the further review (Revision) insofar as the exclusion from subsidiary or other forms of protection were concerned. The revocation of refugee status thus became legally valid.
Decision & reasoning:
The further appeal to the Federal Administrative Court (Revision) had merit. According to the Court:
The High Administrative Court had failed to examine whether the applicant benefited from the facilitated standard of proof under Art. 4.4 of the Qualification Directive with regard to a risk of torture or inhuman or degrading treatment.
The subject of the further appeal procedure is the protection as established under European law in the form of Art. 15 of the Qualification Directive. In the present case only Section 60 (2) of the Residence Act/Art. 15 (b) of the Qualification Directive is relevant.
Initially, the High Administrative Court has correctly found that the granting of subsidiary protection according to Art. 15 (b) of the Qualification Directive is not excluded on the ground that the applicant constitutes a “danger to the community” (Section 60 (8) (1) of the German Residence Act). According to German law, this exclusion ground is only applicable to refugee status and not to other forms of protection. It is true that Art. 17 (1) (d) of the Qualification Directive contains a similar exclusion ground which is applicable to subsidiary protection. However, this provision has been transposed into German law in a different manner: This exclusion ground takes effect in German law only when it comes to the issue of granting or denying a residence permit, it has no effect on the examination of subsidiary protection as such.
However, the High Administrative Court had unlawfully failed to apply Art. 4.4 of the Qualification Directive in the course of the examination of subsidiary protection. Art. 4.4 of the Qualification Directive becomes relevant for the examination of subsidiary protection if the applicant had been subject to serious harm or direct threats of serious harm within the meaning of Art. 15 of the Qualification Directive before he left his country of origin. Therefore, if past persecution has been established within the meaning of refugee law (as in the present case), it has to be examined whether such serious harm has been established at the same time, e.g. if the act of persecution consists of torture or inhuman or degrading treatment or punishment. Furthermore, in stating that the applicant is still at risk of “such” harm, Art. 4.4 of the Qualification Directive presupposes that there is an internal nexus between the harm suffered in the past and the possible future harm.
Outcome:
The case was sent back to the High Administrative Court of Nordrhein-Westfalen.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09 |
| Germany - Federal Administrative Court, 22 July 2010, 10 B 20.10 |
Follower Cases:
| Follower Cases |
| Germany - High Administrative Court of Sachsen-Anhalt, 26 July 2012, 2 L 68/10 |
| Germany - Administrative Court Gelsenkirchen, 18 July 2013, 5a K 4418/11.A |