Germany - Administrative Court Stuttgart, 18 January 2011, A 6 K 615/10
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
An unmarried woman with a “Western“ lifestyle, who is not religious and has no financial means, is at risk of gender based persecution by non-State actors in case of return to Iraq (continuation of the court’s case law, compare decision of 26 June 2007. A 6 K 394/07)
Facts:
The applicant is an Iraqi citizen of Arab ethnicity and Sunnite belief. She entered Germany by land in November 2009 and applied for asylum under German law and refugee status. She stated that she was unmarried and had lived most recently in Kirkuk. Her parents and her brother were killed in October 2009 because of her father, who had previously received threats. Her father was a member of the Baath-party in in the past. In case of return to Iraq she would be helpless and be left on her own. She did not wear a headscarf and appreciates Western values. For these reasons she would be at risk of gender based persecution in Iraq.
Decision & reasoning:
The court found:
It is not necessary to decide if the applicant would be at risk of persecution by non-State actors because of her father’s political activities.
It is decisive that she would be at a high risk of gender based political persecution by non-State actors, namely in the whole national territory, without the State or international organisations being able to protect her (Section 60 (1) sentence (1), (3) and (4) (c) of the Residence Act).
The situation of women, compared to the situation during the Saddam-Hussein-regime, has partially worsened. Tendencies to enforce Islamic rules, for example dress regulations, have increased. Muslim and Christian women are increasingly pressurised, their freedom of movement and opportunities to participate in public life are restricted. There are many indications that in practice “honour killings” are widespread and still unpunished to a large extent. The increasing radicalisation of parts of the Iraqi society towards fundamentalist radical-Islamic convictions threatens in particular the security of women.
A Western life style is a significant breach of customary norms in Kurdish administered North-Iraq. This results in massive pressure and exclusion. A woman, whose conduct is labeled as “dishonourable”, is exposed increasingly to sexual advances and harassments. Violent attacks by male relatives, including “honour killings” cannot be excluded from occuring. To a large extent, the situation of women with a “Western” orientation outside the Kurdish administered region is even much more difficult.
The Iraqi State does not provide sufficient protection from such acts of persecution. The conduct towards women with a “Western” orientation as described above is firmly established in the Iraqi male-dominated society, so the state sees no reason to take action against it.
Such persecution would affect the applicant as well. She gave the court the impression of a self-confident young woman, oriented towards a Western lifestyle, who would like to stand on her own feet and who is a Sunnite on paper only .
Furthermore, the court believes the applicant that she does not have anybody in Iraq to give her shelter, since her father, as a result of his behaviour, has alienated her relatives, who have turned away from her family and the family did not have any friends. Therefore, in case of return to Iraq, she would be left to her own devices. She would soon give offence, even if she would bow, against her own will, to the local dress regulations. Being an unmarried unreligious woman without relatives and friends, and without financial means (her jewellery and her money were given away for her journey to Germany), it is highly likely that she would soon become the focus of fundamentalists. This would result in the serious repression described above, without the prospect of protection against persecution. Therefore, she is eligible for refugee status.
Outcome:
The authorities were obliged to grant the applicant refugee status.
Observations/comments:
By decision of 10 December 2008, the Administrative Court München held that an unmarried woman with a “Western” lifestyle is not at risk of gender based political persecution by non-State actors (M 8 K 07.51028, asyl.net/M15273).