Germany – Administrative Court Hannover, 08/15/2014, 6 A 9853/14
Keywords:
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Crime against humanity
Description
"Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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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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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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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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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:
In light of a deterioration of safety conditions in Iraq since June 10th 2014 members of the Yazidi religious group living in the province of Ninive (Mosul) are in danger of persecution solely on the basis of their religious beliefs, from which they can’t reasonably seek effective protection from the Iraqi state nor from any other organization, which could offer protection. Furthermore they can’t now, nor will they for the foreseeable future be able to evade persecution by seeking refuge in safe havens within country boarders.
Facts:
The plaintiff is an Iraqi citizen of Kurdish descent and member of the Yazidi religious group. He was born in 1996 in Serejka (district of Tel Kef, Ninive).
The plaintiff left Iraq in November 2012 with his Mother and his brothers and sisters. After being separated from them on the course of their flight, he finally reached Germany on the land route as an unaccompanied minor.
On February 5th 2013 the plaintiff applied for asylum. In the subsequent interview conducted by the national office for migration and refugees (BAMF) the plaintiff stated that his father had been attacked and heavily injured at work nine years ago and subsequently died. In the following years he and his family where ousted from their lands from members of Arab ethnic groups.
The BAMF rejected the plaintiffs application on June 5th 2014 stating that it was unsubstantiated. It based its decision on current information about the state of Yazidi people in Iraq and furthermore stated that neither refugee status nor subsidiary protection needs were established. There were no legal obstacles standing in the way of deportation and the BAMF announced his pending deportation back to Iraq or another state.
The plaintiff appealed against the BAMF decision on may 24th 2013 and asked the court to reverse that decision and grant him refugee status.
Decision & reasoning:
The Court found the plaintiffs complaint to be merited and ordered the BAMF to grant him the refugee status.
It found that the BAMF’s decision was illegal. It violated the plaintiffs rights and was therefore to be reversed as well as the pending deportation back to Iraq to be cancelled.
Taking into account the high number of people who have already been displaced by the invasion of the terror organisation ISIS into the mainly Yazidi Province Mosul in June 10th 2014 and the subsequent armed conflict – estimations state a number of about 500.000 and go as high as 1 million displaced people –, leaving the people in this region without protection against aggressive persecution by the terrorists, the complaint appears to be well founded. This rapid deterioration of safety conditions in those north-Iraqi regions has been the subject of intense media coverage and is therefore well documented, leaving the court with no doubt that members of the Yazidi religious community in the province of Ninive (Mosul) are being persecuted solely because of their religious affiliation, facing threats to life and physical condition, as well as displacement or enslavement, originating from a non-governmental actor from which they can neither seek protection from the state or any other entity, nor, for the time being, find refuge in other regions within country boarders.
The Iraqi national army has completely abandoned the regions currently occupied by ISIS and limits itself mainly to the protection of Arabic regions in central Iraq north of Bagdad. No other help is currently available.
The court is convinced that not only the lack of flight routes for the Yazidi to possible safe havens like the neighbouring autonomous Kurdish regions Dohuk, Erbil and Sulaimaniya, but also the unlikeliness of effective protection they would receive in this regions and the sheer number of displaced people that surpasses by far the limited intake capacity of the Kurdish regions negates the possibility to flee from prosecution within the country. The latter is even more so, if the fleeing person has no personal or financial ties to this regions, so that they can sustain an irrefutable minimum of existence there.
According to the plaintiffs own statement he doesn’t have any such ties neither familial nor financial to this regions. More importantly the plaintiff was separated from his only family during the flight and is now alone.
Asserting that the plaintiff has a legal claim to refugee status the court found that the demand for subsidiary protection was of inferior importance and therefore needn’t to be discussed. The BAMF’s statement from June 5th 2014, as well as the pending deportation was found to be illegal.
Outcome:
Complaint granted.
Observations/comments:
Written by Lusalla Nzanza, student assistant at the Refugee Law Clinic Cologne
Inconsistencies with regard to dates were taken from the underlying court decision.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Domestic Case Law Cited
BVerwG, ruling from 20.03.2007 - 1 C 21.06 -, BVerwGE 128, 199 ff. = NVwZ 2007 S. 1089 ff
BVerwG Urteil vom 11.06.2011 - 10 C 25/10 -, BVerwGE 140, 22 ff. = NVwZ 2011 S. 1463 ff
OVG Nordrhein-Westfalen, Urt. vom 22.01.2014 - 9 A 2561/10.A - zur bisherigen Situation der Yeziden
Bay. VGH, Urt. vom 09.10. - 15 B 99.32230 -, juris, m. w. N.
Other Sources
Asylmagazin 2014, 296-298 (red. Leitsatz und Gründe)
Deutsche Welle, www.dw.de vom 11.08.2014 „IS-Milizen im Irak von US- Luftschlägen nicht gestoppt“
Deutsche Welle www.dw.de vom 14.08.2014 „UN rufen höchste Notstandsstufe für Irak aus“
Frankfurter Neue Presse, www.fnp.de vom 08.08.2014 „Chronologie: IS-Terror im Namen des Glaubens“
medico international, www.medico.de vom 08.08.2014 „Massaker an Yeziden im Irak“
medico international, www.medico.de vom 12.08.2014 „Flüchtlinge im Irak in höchster Gefahr“
medico international, www.medico.de vom 12.08.2014 „Nordirak: Helfen Sie den Flüchtlingen“
Savelsberg und Hamo, EZKS, Gutachten vom 17.02.2010 für das VG München
Savelsberg und Hamo, EZKS, Gutachten vom 20.11.2011 für das VG Düsseldorf
Savelsberg und Hamo, EZKS, Gutachten vom 16.09.2013 für das OVG Münster
Spiegel online vom 05.08.2014 „Teuflische Taktik gegen religiöse Minderheiten“
Spiegel online vom 14.08.2014 „Uno-Schätzung: Rund 1000 Jesiden harren noch im Gebirge aus“
Süddeutsche.de vom 07.08.2014 „Kriegserfahrene Ex-Partisanen zwischen allen Fronten“
Süddeutsche.de vom 10.08.2014 „Steinmeier lobt US-Angriffe auf IS-Terrormiliz“
Süddeutsche.de vom 14.08.2014 „Flüchtlinge im Nordirak Bundeswehr-Hilfsflüge starten am Freitag“
tagesschau.de vom 08.08.2014 „Kämpfe im Nordirak - Obama genehmigt Luftangriffe gegen IS“
tagesschau.de vom 10.08.2014 „Kurden erobern Gebiete zurück“