Germany - Administrative Court Karlsruhe, 16 April 2010, A 10 K 523/08
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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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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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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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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.” |
Headnote:
Threats from terrorists against a person who has worked for the international forces in Iraq do not justify the granting of refugee status. Iraqi citizens who have cooperated with the occupying forces do not form a “social group” within the meaning of the Qualification Directive. However, the applicant is entitled to subsidiary protection since there is an armed conflict in the Nineveh region and because the threats by terrorists experienced in the past constitute individual “risk-enhancing” circumstances.
Facts:
The applicant is a woman from Mosul and of Kurdish ethnicity. She applied for asylum in Germany in November 2007 and claimed that terrorists had threatened to kill her because she had been working on a US army base in Iraq. Her brother was severely injured in an attack. The German authorities rejected the application in December 2007. The applicant appealed against this decision to the Administrative Court of Karlsruhe.
Decision & reasoning:
The Administrative Court decided that the applicant was not entitled to refugee status. The court held:
Iraqi citizens who cooperate with the occupying forces cannot be regarded as a “particular social group” within the meaning of Art. 10.1 (d) of the Qualification Directive. The term “particular social group” has to be defined broadly; it is open to be developed further to include the diverse and changing manifestations of groups in various societies. Therefore, it can be sufficient that members of a particular social group share a common characteristic and are regarded by their environment as a clearly defined group (cf. UNHCR Annotated Comments on the Qualification Directive). However, the characteristic of “cooperating with the occupying forces” is not one that would be regarded as characteristic of such a clearly defined group. The applicant herself has stated that she has been threatened by individual terrorists. She has not claimed that she had been generally ostracised by society because of her work for the occupying forces.
However, the applicant is entitled to subsidiary protection under Section 60 (7) (2) of the Residence Act/Art. 15 (c) of the Qualification Directive.
According to the standards as defined by the Federal Administrative Court, an armed conflict within the meaning of Art. 15 (c) of the Qualification Directive does not necessarily have to extend to the whole territory of a state. Neither does it necessarily have to reach the threshold which international humanitarian law has set for an armed conflict (Art. 1 No. 1 of the Second Additional Protocol to the Geneva Conventions), however, a situation of civil unrest, during which riots or sporadic acts of violence take place, is not sufficient. Conflicts which are in between those two situations, have to be marked by a certain degree of durability and intensity.
In the present case, the applicant could only take up residence in Nineveh province upon return to Iraq. This is where her family lives. As mother of an infant she cannot be expected to take up residence in another region where she does not have this family background. Therefore the situation in Nineveh province has to be taken into account in the course of the examination of whether the applicant is to be granted subsidiary protection.
The court proceeds from the assumption that an armed conflict within the meaning of the Qualification Directive existed in Niniveh province in 2007 and that the situation has not significantly improved since then. A high number of attacks take place in the province and the number of these incidents indicates that members of the terrorist organisation have a certain strength in terms of their numbers.
Against this background, and because the applicant and her family were subjected to threats and attacks in the past, it has also to be assumed that individual, “risk-enhancing” circumstances exist.
Outcome:
The authorities were obliged to grant subsidiary protection.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Additional Protocol II 1977 |
| Additional Protocol II 1977 - Art 1(1) |
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |
| Germany - Federal Administrative Court, 24 June 2008, 10 C 43.07 |
Other sources:
UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (OJ L 304/12 of 30.9.2004)