Germany - Federal Administrative Court, 24 September 2009, 10 C 25.08

Facts:

The applicant came to Germany with his family in 1999, at the age of 15. Following the rejection of the first asylum application, he filed a subsequent application in the year 2000, based on his membership of the "Constitutionalist Party of Iran" and the "Organisation for the Protection of the Iranian Christians’ Rights". This application was also rejected.

A further subsequent application was based on the applicant’s involvement in a stage play critical of the Iranian regime, which had been broadcasted on a TV channel which could be received in Iran. This application was again rejected by the asylum authorities; however, the Administrative Court of Regensburg required the authorities to grant the applicant refugee status in December 2005.  

The authorities asked for a further appeal (Berufung) to the High Administrative Court. The High Administrative Court dismissed the further appeal. The High Administrative Court conceded that the applicant had created the reasons on which the fear of persecution was based, by his own decision, after the termination of his first asylum procedure. Accordingly, he would,as a matter of principle, not be eligible for refugee status under German law. However, the High Administrative Court found that his case was an exceptional one, since the applicant, due to his age at the time of the first asylum procedure, had not been in a position to form a political opinion of his own at this time. 

The authorities' further appeal to the Federal Administrative Court (Revision) focused on this issue. The authorities argued, inter alia, that the High Administrative Court had been wrong in assuming that there was an exception from the rule excluding “post-flight reasons created by one's own decision” ("selbstgeschaffene Nachfluchtgründe") since the applicant had been of legal age at the time of his second application.

Decision & reasoning:

The decision by the High Administrative Court was annulled and the case was sent back to the High Administrative Court. The court stated:

According to Art 5.3 of the Qualification Directive, Member States may adopt their own regulations regarding circumstances which were created by the applicant's own decision after the termination of a previous asylum procedure. In Germany, refugee status may in principle not be granted based on reasons which were created by the applicant’s own decision after the legally valid rejection or withdrawal of a previous application. The legislator thus has provided that such circumstances are in principle suspected of having been brought about abusively , i.e. for the sole reason of supporting a subsequent application. Accordingly, it is not the state which has to prove that circumstances created by the applicant’s own decision were created abusively, but it is the applicant who has to prove that this is not the case.

The relevant date for assessing circumstances which the applicant has created by his own decision, is not the date of departure from the country of origin, but the moment when the former asylum procedure was terminated. In case of several asylum procedures, the most recent procedure is the relevant one. At that time the applicant was already 18 years old and therefore in a position to develop his own political opinion. This can be assumed after attaining the age of 16, or, at the latest, the age of 18.

Since the High Administrative Court did not establish sufficiently whether this case may still be an exceptional case for other reasons, the matter has to be remanded to the High Administrative Court. Though the applicant’s political activities  during the previous subsequent asylum procedure are an indication for this assumption, he has to explain why he intensified his activities after the termination of the previous procedure.

Outcome:

The decision of the High Administrative Court was annulled. The matter was remanded to the High Administrative Court Bayern for a new decision.

Subsequent proceedings:

Unknown. The applicant has since obtained a residence permit and therefore is no longer at risk of deportation to Iran.