Germany - Administrative Court Stuttgart, 8 September 2008, A 10 K 13/07
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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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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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:
A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:
- State protection doesn’t exist against ‘honour killings’ in Lebanon.
- Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
- Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).
Facts:
The applicant is a Lebanese citizen of Shiite belief. Together with her son, born in 1995, she came to Germany via Italy and applied for asylum. This application was rejected in 2001. Her appeal against this decision was dismissed by the Administrative Court of Stuttgart on 21 February 2003.
The asylum case of her former husband also failed. In 2004, the applicant filed a divorce application. She was divorced in October 2004.
In March 2006, the applicant filed a subsequent application for asylum. During the procedure, she corrected some conflicting statements she had made during the first asylum process. The applicant referred to new circumstances and to new evidence. Furthermore, she explained that she had received threats from her brother, who lived in Lebanon, after her divorce. Her former husband had informed her brother about the divorce and told him that she had visited bars and made friends with men. Her brother threatned to kill the applicant and was waiting for her to return to Lebanon in order to kill her as he condemned her way of life as incompatible with Islam and declared that she tarnished the family’s honour.
Decision & reasoning:
The appeal regarding the asylum claim under German law (Art 16 (a) of the German Constitution) was dismissed, as the applicant came to Germany via a safe third country – Italy.
The applicant was eligible for refugee status in terms of Section 60 (1) of the Residence Act. Although it was established that she gave false information, regarding her citizenship, her entry to Germany and the possession of her identity documents, the court accepted that the applicant was credible. The court stated:
A death threat against a woman because of her attempts to live a self-determined life constitutes non-state persecution in terms of Section 60 (1) sentence (4) (c) of the Residence Act, because of her membership of a particular social group. The "threat of physical integrity and liberty" refers exclusively to gender. The term "gender" does not only refer to biological assignment, but to the stereotyped social role members of either of the sexes have to play. Women who do not bow to the discrimination and deprivation of rights, which are laid down in their home country by tradition and social circumstances, constitute a particular social group in terms of Art 10.1 (d) of the Qualification Directive in relation to the surrounding society. Even though the brother of the applicant is a single person, he can be a “non-State actor” in terms of Section 60 (1) sentence 4 (c) Residence Act / Art 6 (c) of the Qualification Directive (see Federal Administrative Court, 18 July 2006, 1 C 15.05).
It is in fact non-State persecution in terms of Section 60 (1) sentence 4 (c) Residence Act / Art 6 (c) of the Qualification Directive, since one can assume that the Lebanese State is either willing or able to protect the applicant against such death threats. According to various sources of country of origin information, the Lebanese State is not able to protect a woman sufficiently against a threatened “honour killing”. It is sufficiently probable that the applicant’s brother will realise his threat. Considering that he issued the threat several times and expelled her mother, who defended her, from the house, there is a high probability that he will realise his threat.
Furthermore, it has to be assumed that the applicant will not have a realistic chance of escaping from her brother’s persecution. For a single mother with two children, there is likely to be only a limited chance of surviving in one of the big cities in Iran. However, in the long run she will probably not be able to hide from male relatives wanting to re-establish the "family honour".
Outcome:
The court ordered the authorities to grant refugee status.
Subsequent proceedings:
Not known.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05 |