Germany - Administrative Court München, 21 September 2011, M 11 K 11.30081
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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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 (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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:
An applicant from Somalia was eligible for refugee status. The court found:
- There was sufficient probability that the applicant’s life and freedom, in case of return to Somalia, were at risk due to his membership of a particular social group.
- Clan membership constitutes a particular social group.
- Protection against persecution is not provided by the State, by parties or by other organisations in Somalia.
- There is no internal protection in Somalia.
Facts:
The applicant is a Somali citizen and belongs to the Wadaan clan. He entered Germany on 27 October 2009. On 16 November 2009, he applied for refugee status and asylum under German law. By decision of 20 January 2011, the asylum application was rejected by the asylum authorities (Part 1 of the decision). His application for refugee status was also rejected (Part 2), however, the authorities found that the applicant must not be deported to Somalia und Section 60 (1) of the Residence Act (Part 3 of the decision). The applicant appealed against the refusal to grant refugee status, Part. 2 of the decision.
Decision & reasoning:
The authorities were required to recognise the applicant as a refugee according to Section 60 (1) of the Residence Act. The court found:
There is sufficient probability that the applicant’s life and freedom, in case of return to Somalia, are at risk due to his membership of a particular social group. These dangers originated from non-State actors, without the State, parties or organisations being in a position to provide protection against such persecution. According to the court’s findings, the applicant’s life and limb, are endangered by members of other clans merely because of his membership of a particular clan (Wadaan) and therefore of a particular social group.
Since 1991, Somalia exists without an internationally recognised Government. There is no central state order. Large areas of the country are at a constant civil war and are ruled by local war-lords and militias. There are constantly armed conflicts between rival clan-militias with, at times, significant numbers of victims. Torture, arbitrary killings and systemic use of violence against hostile clans and sub-clans characterise the civil war-like conditions. There is no internal protection in Somalia. Fighting and arbitrary measures of different militias and acts of persecution against other clans make it difficult or even impossible to actually reach safe places of refuge (for example, in the Northern part of the country). In addition to that, due to the difficult economic and security situation in general, survival of such persons, who are not in a position of being supported by local family members, is questionable. Apart from that, local rivalries constitute risks for returnees, depending on their clan-membership, which are difficult to assess, but may be life-threatening even in allegedly secure places. The civil war situation in Somalia has not substantially changed so far (see the reports of the Foreign Office on the situation relevant to asylum and deportation in Somalia of 7 February 2006, 17 March 2007, 5 May 2008, 2 April 2009, 11 April 2010 und 24 March 2011). Therefore, the appeal is successful.
Outcome:
The asylum authorities were ordered to grant the applicant refugee status.
Relevant International and European Legislation:
Other sources:
Reports of the Foreign Office on the situation relevant to asylum and deportation in Somalia of 7 February 2006, 17 March 2007, 5 May 2008, 2 April 2009, 11 April 2010 and 24 March 2011.