Germany - Administrative Court Berlin, 9 June 2011, 33 K 285.10 A
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court Berlin |
| Date of decision: | 09-06-2011 |
| Citation: | 33 K 285.10 A |
| Additional citation: | asyl.net/M18770 |
Keywords:
| Keywords |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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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. |
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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:
It is in principle possible for men to be persecuted on account of their gender. However, classifying the punishment for extramarital sex in Afghanistan as persecution on account of both membership of the group of men and the group of women would cover the entire society and renders the definition meaningless. Therefore, the applicant was not granted refugee status but his deportation was prohibited under Section 60 (2) of the Residence Act / Art 15 (b) of the Qualification Directive.
Facts:
The applicant is an Afghan citizen of Tajik ethnicity and of the Islamic faith. He came to Germany in May 2009 and applied for asylum. This application was rejected by the authorities. However, his deportation was prohibited under Section 60 (2) Residence Act / Art 15 (b) Qualification Directive. The applicant appealed this decision regarding the refusal of refugee status under Section 60 (1) Residence Act. He explained that in case of return to Afghanistan, he would face persecution because he had extramarital sex with a woman who is now, after his escape, his wife and who was granted refugee status.
Decision & reasoning:
The court stated:
The applicant is not eligible for refugee status. However, the authorities rightly prohibited his deportation under Section 60 (2) of the Residence Act. The threats claimed by the applicant and the murder he fears do not constitute persecution owing to his gender. Though persecution of men owing to their gender is in principle possible, the court holds that this is not the case here. One cannot establish such persecution due to the fact that the applicant’s present wife was granted refugee status for this particular reason. Firstly, the situation of his wife after the extramarital sex was much more severe than his: she was also supposed to undergo a forced marriage. Due to the discrimination against women in Afghanistan, especially in Herat, it would have been she who would be blamed for bringing shame on the family. Secondly, according to the information available to the court the risk for women of becoming victims of severe human rights violations for the alleged violation of their husband’s or family’s honour is very high, while men are punished - though infringing human rights - “only” in cases where extramarital sex actually took place.
Classifying the punishment for extramarital sex in Afghanistan as persecution on account of both membership of the group of men and the group of women would cover the entire society, rendering the definition meaningless. Subsuming persecution under the aspect of membership of the particular group of “men who are accused of extramarital sex” is also impossible because they do not share a common characteristic noticeable by the surrounding society.
Outcome:
The appeal was dismissed.