Germany - High Administrative Court of Niedersachsen, 13 April 2011, 13 LB 66/07
Keywords:
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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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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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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Real risk
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. 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. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “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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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
The question of whether the current situation in Iraq is an internal armed conflict (nationwide or regionally) according to Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive was left open. Even if one assumes that such a conflict takes place, subsidiary protection is only to be granted if the applicant is exposed to a serious and individual threat to life or physical integrity “in the course of” such a conflict. This cannot be established regarding the applicant in the present case.
Facts:
The applicant was born in Germany in 2002. Her parents are of Kurdish ethnicity and originate from the province of Dohuk. Her parents' asylum applications were rejected. Due to a provision of the German Asylum Procedure Act, the authorities automatically initiated an asylum procedure for the child born in Germany. The authorities rejected the application as manifestly unfounded and found that neither subsidiary protection nor other forms of protection were to be granted. The Administrative Court of Göttingen annulled this decision in January 2006 for procedural reasons, arguing that no lawful procedure had taken place. The High Administrative Court granted a further appeal (Berufung) because of the fundamental significance of the case. The procedural issues were clarified in advance, so the further appeal proceedings only focused on the question of whether the applicant was eligible for subsidiary protection.
Decision & reasoning:
The applicant was not eligible for subsidiary protection under Section 60 (7) (2) of the Residence Act/Art. 15 (c) of the Qualification Directive. The court found:
It can be left open whether the current situation in Iraq justifies the assumption that an internal armed conflict is taking place (either nationwide or regionally). Even if one assumes that such a conflict is taking place, deportation would only be prohibited if the applicant was exposed to a serious and individual threat to life and limb “in situations of” (i.e., “in the course of”) this conflict. Such a threat cannot be established regarding the applicant in the present case.
According to the decision by the Federal Administrative Court of 14 July 2009,10 C 9.08 (asyl.net, M16130) an “individual accumulation of a risk”, which is essential for granting subsidiary protection, may on the one hand occur if individual circumstances lead to an enhancement of the risk for the person concerned. On the other hand, it may also, irrespective of such circumstances, arise in extraordinary situations which are characterised by such a “density of danger” that practically any civilian would be exposed to a serious individual threat simply by being present in the relevant territory.
Regarding the applicant, who was born in Germany, there are no individual risks which may enhance the general risk in case of return. Though she was born in Germany and therefore is influenced by a “Western lifestyle”, she shares this characteristic with many other Kurds who were born in Western countries or with those Kurds who have been living there for a long time. Without further “risk-enhancing” circumstances, an “individualisation of a real risk” cannot be derived from this fact. Furthermore, it can be assumed that the applicant, being a child, will easily be able to adapt to the cultural realities of her home region.
Furthermore, the necessary individualisation cannot be deduced from an exceptional “density of danger” which the applicant may be exposed to and against which she may not find internal protection in other parts of Iraq. A degree of danger which would expose virtually any civilian to a serious and individual threat solely by being present in the relevant territory cannot be established for the province of Dohuk, where the applicant’s parents come from. According to the country of origin information, the number of attacks in Dohuk is rather low in comparison to other regions and the security situation is considered to be good.
Outcome:
The applicant was not eligible for subsidiary protection.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |
| Germany - Administrative Court Göttingen, 18 January 2006, 2 A 506/05 |