Germany - Administrative Court Aachen, 10 May 2010, 2 K 562/07.A
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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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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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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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:
- In principle, a threat of female genital mutilation (FGM) has to be considered as political persecution according to Section 60 (1) Residence Act.
- In Nigeria, FGM is still widespread in all known forms. For the Edo ethnic group, it is usually performed between seven and fourteen days after birth.
- The number of circumcisions performed (among the Edo ethnic group) during puberty has decreased significantly in recent years and circumcisions in adulthood are no longer performed, or they are only carried out in a small number of cases.
In the present case the court found that it was unlikely that the applicant was at risk of FGM considering her age (five years) and the fact that both her parents opposed the practice. Further, the requirements of ‘Prohibition of deportation’ (Section 60 (2) through (7) of the Residence Act) were not established; it was considered unlikely that the applicant would actually return to Nigeria as her mother had residency in Germany.
Facts:
The applicant, born in 2005 in Germany, is a Nigerian citizen. Her mother, also a Nigerian citizen and member of the Edo ethnic group, came to Germany in 2004. The applicant’s mother is the holder of a residence permit as she is the mother of another child, born in 2008, who holds German citizenship. The applicant’s father, also a Nigerian citizen, entered Germany in 1990 and applied for asylum. Because he was married to a German woman, he received a residence permit in 1993. They were divorced in 1998. Currently, he has “tolerated status”.
After an application for a residence permit was rejected, the applicant applied for refugee status. Her mother, in her name, argued that the applicant, in case of return to Nigeria, would be at risk of being circumcised by force. The application was rejected. The applicant appealed this decision.
Decision & reasoning:
The court stated:
A threat of female genital mutilation (FGM) in the country of origin is in principle political persecution according to Section 60 (1) of the Residence Act. Specifically, it results in the exclusion of the person concerned from the general peaceful order of the State. In this respect, one cannot argue that FGM is performed for the purpose of integration and inclusion of the girls and women concerned in a particular society and that prohibiting the exclusion of uncircumcised women, threatening their survival, does not constitute political persecution (see Administrative Court Münster, 15 March 2010, 11 K 413/09.A). Circumcision aims at targeting the political beliefs of the persons concerned, who might object, subjecting them to the tradition and, while disregarding their right to self-determination, making them mutilated subjects.
Furthermore, Section 60 (1) sentence (3) of the Residence Act clarifies that, when a person’s life, freedom from bodily harm or liberty is threatened solely on account of his/her sex, this may also constitute persecution due to membership of a particular social group. Sentence 3 of this provision is meant to include circumstances exactly like a threat of female genital mutilation. Section 60 (1) sentence ( 4) (c) of the Residence Act expands the scope of protection to the persecution by non-State actors, if it can be demonstrated that the State, parties or organisations are unwilling or unable to provide protection against persecution, unless there is an internal protection alternative.
It cannot be established with a reasonable degree of probability that the applicant, in case of return to Nigeria, is at risk of political persecution in the form of FGM.
Female genital mutilation, in all its known forms, is still widespread in Nigeria. According to traditional belief, female genital mutilation serves fertility, controls female sexuality, prevents promiscuity and secures women’s economic future by marriage. Considering the fact that in some cases only circumcised women are considered “marriageable”, the pressure on the persons concerned, and on their parents, to perform a circumcision might be considerable. In order to achieve “eligibility for marriage”, female members of a family in particular endeavour to have circumcision performed and sometimes it even happens against the parents’ will. The age of circumcision may vary between shortly after birth up to adulthood and depends on the particular ethnic group. A general – nationwide – legislation prohibiting circumcision does not exist; prosecution is possible only under the general criminal law. Some federal states, including Edo-State, have enacted laws prohibiting FGM; however, criminal procedures have not yet become known.
Regarding the Edo ethnic group, the age of circumcision, according to the court’s information, is between the seventh and the fourteenth day after birth. The applicant, however, is already five years old. Although the mother of the applicant maintains that FGM can be performed even later, and claims that she herself was circumcised at the age of twelve, these claims are doubtful. Furthermore, according to the information at hand, the number of circumcisions during puberty has decreased significantly in the last couple of years and circumcisions in adulthood are no longer performed or only performed in a small number of cases. Finally, it is not sufficiently likely that a circumcision would be performed, since a circumcision of a minor girl in principle requires the parents’ consent and in the present case both parents have opposed the applicant’s circumcision.
Obstacles to deportation under Section 60 (2) through (7) of the Residence Act, as far as they have to be taken into consideration in an asylum case, do not exist in the present case. Given the actual circumstances of the family and their legal situation regarding their right of residence, one cannot assume, in the context of a risk assessment that the applicant will return with one of her parents, or together with both parents, to Nigeria. Her parents are separated; her mother has a residence permit. The father has access rights only, therefore one cannot assume that he will return to Nigeria with the applicant.
Outcome:
The appeal was dismissed.
Subsequent proceedings:
Unknown
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Administratvive Court Münster, 11 K 413/09.A, 15 March 2010 |
| Germany - Administrative Court Gelsenkirchen, 14 March 2006, 9a K4180/05 |