Germany - High Administrative Court Schleswig-Holstein, 27 January 2006, 1 LB 22/05
Keywords:
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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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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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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. |
Headnote:
Persecution by non-State actors according to Section 60 (1) sentence 4 (c) of the Residence Act (similar to Art 6 (c) of the Qualification Directive) is not established if the group of actors is small and only consists of a limited number of private persons. In this case, the "dangerousness" of the persecution is not comparable to those cases where the persecution stems from the State or State-like actors according to Section 60 (1) sentence 4 (a) and (b) of the Residence Act (similar to Art. 6 (a) and (b) of the Qualification Directive) .
A family or an extended group of relatives do not constitute a "social group" in the context of refugee protection. A family is not clearly perceived as a definable group with its own "group" identity. Such a clear definition of a family or clan could only be established if membership of the family was considered of high importance and the family or clan had a distinct identity.
Facts:
The applicant was born in 1986 and is an Iraqi citizen of Kurdish origin. He came to Germany in March 2003 and applied for refugee status. The applicant’s claim was based on his fear of "blood feud" (vendetta) by relatives of two farmers who were killed by his father.
The application was rejected in a decision of the 21 November 2003. The applicant filed a complaint against this decision to the Administrative Court who subsequently required the authorities to grant refugee status to the applicant, stating that he would face persecution by non-State actors according to Section 60 (1) sentence 4 (c) of the Residence Act and internal protection in other parts of Iraq was not available to him.
The authorities applied successfully for permission to appeal to the High Administrative Court arguing that harassment by private actors did not fall within the ambit of "persecution by non-State actors".
Decision & reasoning:
It was held that the applicant was not entitled to protection under Section 60 (1) (4) (c) of the Residence Act. The court found that relatives of the farmers who were killed could not be considered "non-State actors" in terms of Section 60 (1) sentence 4 (c) of the Residence Act. The court stated:
From a systemic interpretation of Section 60 (1) sentence 4 (c) of the Residence Act it is evident that "the actors" who become active, as occurred in this case, in the execution of a private vendetta only, do not fall within the range of application of Section 60 (1) (4): By offering protection equally against State (sentence 4 (a)), State-like (sentence 4 (b)) and non-State persecution (sentence 4 (c)), a certain "quality" of the danger connected with the persecution is required by Section 60 (1) Residence Act, regarding the sustainability and the comprehensiveness of persecution.
In the case of persecution by the State or State-like actors, the danger stems from the organisation of the actors of persecution that persecuted people are exposed to, in the whole of the country, or at least in those areas under their control. Such persecution, due to its organisation, is sustainable and “comprehensive” and results in the exclusion of the persons concerned from protection. Furthermore, they can only escape persecution by fleeing. Persecution by non-State actors does not equal in its “quality” those cases mentioned in Section 60 sentence 4 (a) and (b) of the Residence Act, if the group of actors is small and only consists of a limited number of private persons. In this case, the “exclusion” from protection is limited in scope to the families and clans concerned.
Regardless of whether the applicant was threatened or endangered by "non-State actors", this threat was not linked to persecution grounds provided by Section 60 (1) of the Residence Act, such as race, religion, nationality, membership to a particular social group or political opinion.
In the present case, the applicant’s family may be considered as constituting a "particular social group" under Section 60 (1) of the Residence Act, as a member of which he may face blood feud (vendetta) from another family or clan.
Considering the criteria listed by UNHCR (compare UNHCR Guidelines on International Protection: "Membership of a Particular Social Group" within the Context of Art. 1 A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees), a family or an extended group of relatives do not constitute a "social group" in the context of refugee protection. A family is not perceived as a clearly definable group with its own “group” identity. Such a clear definition of a family or clan could only be considered where its membership is of high importance and the family or clan has a distinct identity.
Regardless of the explanations above, the applicant could avoid persecution by members of the "Sindi" Clan (the family) by availing of internal protection according to Section 60 (1) sentence 4 (c) of the Residence Act.
Outcome:
The appeal against the rejection of the application was dismissed.
Subsequent proceedings:
The High Administrative Court did not allow a further appeal.
Observations/comments:
Although this decision was issued prior to the entry into force of the Qualification Directive, it is still relevant, since the wording of Section 60 (1) sentence 4 of the Residence Act is similar to Art 6 of the Qualification Directive.
An English translation of Section 60 (1) of the Residence Act is available on the website of the German Federal Ministry of Justice
Residence Act (Aufenthaltsgesetz):
http://www.gesetze-im-internet.de/aufenthg_2004/
Relevant International and European Legislation:
Other sources:
UNHCR Guidelines on International Protection: "Membership of a Particular Social Group" within the Context of Art. 1 A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, May 2002