Germany - Administrative Court Gelsenkirchen, 18 July 2013, 5a K 4418/11.A
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court Gelsenkirchen |
| Date of decision: | 18-07-2013 |
| Citation: | 5a K 4418/11.A |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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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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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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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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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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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. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The risk of arranged marriage is widespread in Afghanistan, particularly for underage girls, which means that it may constitute grounds for refugee status for women.
In the examination of Article 8 of Directive 2004/83/EC, it is important to take into account the fact that family members may only return together with their children and spouses on the grounds of the protection of marriage and family.
Facts:
The Applicants are Afghani nationals of the Shiite religion. The first Applicant was born in 1991 and her daughter was born in 2010. The husband / father of the Applicants is also an Afghani national of the Shiite religion. The first Applicant travelled to Germany with her daughter in January 2011 and applied for asylum. The following grounds were put forward in support of her application:
The families of the Applicant and her current husband were neighbours in I. in Afghanistan where they met and fell in love. The Applicant’s father was not in favour of the relationship and wanted her to marry a considerably older cousin. She therefore decided to flee together with her current husband. His family were also against this elopement and marriage.
The Applicant had lived in Afghanistan up until her departure in 2009. She then moved to Iran with her current husband where she was married and gave birth to her daughter. After staying in Iran for six months, the family travelled via Greece to Germany.
Decision & reasoning:
The Applicants are to be recognised as refugees on the grounds of their threatened persecution based on gender. The first Applicant left her home due to a justified fear of an arranged marriage and would still be threatened by the latter if she were to return or would be exposed to repression from her father.
The risk of an arranged marriage in Afghanistan, which is widespread in the country particularly for underage girls, may constitute grounds for refugee status for women. The Constitution and legislation of Afghanistan are increasingly upholding women’s rights. However, in most cases, this has had little effect on actual living conditions and women continue to suffer discrimination in many respects.
In the social sphere, an orthodox interpretation of Sharia and archaic / patriarchal codes of honour still determine the situation of women and girls. In the Applicant's religion in particular, an extremely traditional code of behaviour restricts the freedom of movement and actions of women and girls to a large degree. Due to the inferior position of women in Afghanistan, domestic violence in the form of beatings and abuse is widespread. Around 60% of marriages in Afghanistan are believed to be child marriages and up to 80% of all marriages are thought to be arranged. Fleeing from an arranged marriage can result in honour killings. If a woman escaping from an arranged marriage enters into a pre- or extramarital relationship with another man, it is not only the woman who is at risk of a crime of honour but also her own children and the other man.
On the basis of the information provided by the Applicant, it has been concluded that she was a victim of persecution according to clause 60 (1) (5) of the Residence Act in conjunction with Article 9 of Directive 83/2004/EC. The act of an arranged marriage itself, with which she was threatened, and the maintenance of this marriage constitute a violation of Article 12 of the European Convention on Human Rights according to which men and women have the right to enter into marriage and start a family. This right also includes the negative freedom not to be obliged to marry if this does not correspond to a personal wish. Arranged marriages and the obligation to remain in an arranged marriage also violate the right to private life according to Article 8 of the European Convention on Human Rights. Furthermore, arranged marriages violate Article 16 (2) of the Universal Declaration of Human Rights according to which a marriage may only be concluded on the basis of the free and unlimited will of both future spouses.
The main actor of this threatened persecution was the father of the Applicant. He is a significant non-state actor within the meaning of Article 6 (c) of Directive 83/2004/EC: since acts of persecution may, without limitation, stem from single individuals.
The Applicant was not able to obtain protection from the state, sufficiently influential parties or national or international organisations (Article 7, Directive 83/2004/EC). More specifically, the Afghan state is not in a position to offer protection against arranged marriages by non-state actors. The Applicant benefits from the shifting of the burden of proof in relation to the likelihood of persecution according to Article 4 (4) of Directive 2004/83/EC as she was under direct threat of an arranged marriage. The Applicant’s fear of persecution even intensified following her escape as, according to her statement, she was afraid that her father would kill her if she were to return because he believed that she had sullied his and his family’s honour.
There are no domestic alternatives for flight according to Article 8 of Directive 2004/83/EC. The Applicant cannot be expected to remain in Kabul or elsewhere in Afghanistan in the long term in order to escape from her father’s threats. It can be assumed that the family would not be able to maintain a level of subsistence in Kabul. The Applicant’s husband is neither wealthy nor particularly qualified. It is not possible to feed a family with two small children in Kabul on the basis of temporary jobs.
If it transpires that the Applicant is eligible for deportation protection, then this protection will also apply to her daughter as she is under threat of her grandfather’s blood vengeance.
Outcome:
The Applicant was granted refugee status according to clause 60 (1) of the Residence Act.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 4.09 |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09 |
| Germany – Federal Administrative Court, 29 May 2008, 10 C 11.07 |
| Germany - Federal Administrative Court, 7 September 2010, 10 C 11.09 |
| Germany - High Administrative Court Nordrhein-Westfalen, 17 August 2010, 8 A 4063/06.A |
| Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05 |
| Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06 |
Other sources:
Foreign Office, reports on the asylum and deportation situation in the Islamic Republic of Afghanistan, 10 January 2012, p. 20 ff., and 4 June 2013
Amnesty International, annual report Afghanistan 2012, 24. May 2012
Amnesty International, annual report Afghanistan 2013, 23 May 2013
Schweizerische Flüchtlingshilfe, "Afghanistan: Update: Die aktuelle Sicherheitslage", 3 September 2012
Schweizerische Flüchtlingshilfe, "Afghanistan: Situation geschiedener Frauen", 1 November 2011
Schweizerische Flüchtlingshilfe, "Afghanistan: Situation von Waisenmädchen", 24 November 2011
Schweizerische Flüchtlingshilfe, "Iran: Zwangsheirat einer afghanischen Minderjährigen", 7 February 2013
UNHCR, guidelines on the determination of the international protection needs of Afghani asylum-seekers – summarised translation, 24 March 2011
Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), answering questions on Afghanistan: sanctions against an unmarried couple in hiding (role of ethnicity and religion?); sanctions against the husband’s family members, 27 December 2012
ACCORD, answering questions on Afghanistan: information on the practice of blood vengeance, 11 June 2013
Federal Agency for Civil Education, brief profile on the conflict in Afghanistan, 18 February 2013
Federal Office for Migration and Refugees (BAMF), gender-specific persecution in selected countries of origin, April 2010
Lutze, report to the High Administrative Court of Rheinland Pfalz, 8 June 2011, p. 3 and 6 ff.