Germany - High Administrative Court Saarland, 26 September 2011, 3 A 356/11
Keywords:
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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
Headnote:
The standards of proof for the assessment of possible future persecution are identical for both the refugee status determination procedure and for the revocation procedure (change of legal opinion, following Federal Administrative Court, decisions of 1 June 2011,10 B 10.10 and 10 C 25.10). The question of whether a change of circumstances in a country of origin is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded can only be answered after an individual assessment.
Facts:
The applicant is a Turkish citizen of Kurdish ethnicity. He came to Germany in March 2004 and was granted refugee status. In January 2004, the authorities revoked refugee status on the grounds that the human rights situation in Turkey had improved. The applicant appealed this decision, arguing that the human rights situation in Turkey was still poor and that he would face a particular risk because of exposed political activities in exile. The Administrative Court Saarland dismissed his appeal.
Decision & reasoning:
The request to grant a further appeal (Berufung) to the High Administrative Court was not justified. Since the entry into force of the Qualification Directive a uniform standard (i.e. a standard corresponding to the standard of considerable probability) has to be applied for both establishing and terminating the entitlement to refugee status (Art. 4.4, Art. 11 and Art. 14.2 of the Qualification Directive). Therefore, the former case law of the Federal Constitutional Court and the Federal Administrative Court, using different standards of proof) for the recognition and revocation of refugee status, are no longer applicable.
The question of whether the circumstances in which refugee status was granted have ceased to exist to an extent that there is no sufficient probability of persecution in case of return, cannot be answered in general, but only on an individual basis. Accordingly, the case at hand is not about the question of whether the reform process in Turkey has generally led to a situation in which returnees to Turkey are not threatened by persecution. It has to be examined whether those circumstances, which have resulted in the fear of persecution of the applicant, have improved significantly and not just temporarily, so that there is no significant probability of renewed persecution in his case.
Taking into account the character and the duration of the applicant's political activities in exile, the High Administrative Court assumed that these were not sufficient to result in special attention from the Turkish authorities. Being a member of the board of an organisation in exile could not, in every case, be considered to incur such attention.
If a refugee has suffered torture and ill-treatment in the past, this is not, in any case, a compelling reason to dismiss the possibility of a return to the country of origin. This is only the case if the aftereffects of torture render the return unacceptable.
Outcome:
The request for admission of a further appeal (Berufung) to the High Administrative Court was dismissed.
Subsequent proceedings:
Unknown.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 24 February 2011, 10 C 5.10 |
| Germany - Federal Administrative Court, 01 June 2011, 10 C 10.10 |
| Germany - Federal Administrative Court, 1 June 2011, 10 C 25.10 |
| Germany - High Administrative Court Saarland, 25 August 2011, 3 A 34/10 |
| Germany - High Administrative Court Saarland, 25 August 2011, 3 A 35/10 |