Germany - Administrative Court Gießen, 11 July 2013, 5 K 1316/12.GI.A
Keywords:
| Keywords |
|
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. |
|
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." |
|
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). " |
|
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. |
|
Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
|
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. |
|
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. |
|
Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. 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. |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
|
Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
Ahmadis, for whom the practise and possibly also the promotion of their faith in public are elements which define their identity and as such are essential, are very likely to be at risk of political persecution in Pakistan. The “relationship consideration” demanded by the Federal Administrative Court, whereby the number of members of a particular group is compared with the number of actual threatening acts of persecution, seems virtually impossible in this case.
Facts:
The Applicant is a Pakistani citizen and part of the Ahmadiyya religious community. She travelled to the Federal Republic in August 2011. She justified her asylum application on the grounds that her husband had died in 2007. She subsequently lived alone in Karachi. As a single Ahmadiyya woman who openly practised her faith in public, she faced continual problems in her neighbourhood. She had been threatened and railed against and had repeatedly had her water cut off. She was fragile and suffered from a number of illnesses.
Decision & reasoning:
In view of the situation of Ahmadis in Pakistan, the Applicant, as a known member of the Ahmadiyya religious community, is currently very likely to be exposed to the risk of a serious human rights’ violation according to Article 9 (1) of the Qualification Directive on the grounds of her faith. Acts which according to the jurisprudence of the Court of Justice of the European Union (CJEU) may constitute a serious violation of religious freedom on the basis of Article 9 (1) (a) of the Qualification Directive do not simply include a serious encroachment on the freedom to practice one’s faith in private put also the freedom to practice religion in a public context. An essential issue in the evaluation of a serious human rights’ violation is the fact that Ahmadis are prohibited from recognising themselves as Muslims and from expressing this in public (Article 2 (b) of the Qualification Directive). All subsequent prohibitions stem from this situation (Article 9 (2) (c) of the Qualification Directive). This prohibition and its subsequent implementation must inevitably affect the very way in which Ahmadis understand their own identity when all public activities, and in particular the promotion of their faith and peaceful evangelizing, are not permitted and are only possible subject to the threat of serious penalties or violations of life and physical integrity.
Ahmadis who practice their faith in a manner which exposes them to persecution and who actively express their religious denomination in public are at real risk of persecution in Pakistan. It is important to take into account in this consideration that serious risks to life and personal integrity exist with a danger of years of imprisonment and torture or inhuman detention conditions and attacks or serious assaults on private individuals. A specific additional “relationship consideration” as demanded by the Federal Administrative Court, which is intended to render the risk of persecution more plausible, seems virtually impossible in this case however. The issue of the number of Ahmadis who continue to act in a manner which is visible to the public in spite of all bans, threatened or imposed penalties and attacks which present risks to life and the personal integrity of private individuals cannot be determined with sufficient precision. Whilst a relationship consideration is not possible on account of this fact, these restrictions on investigative possibilities should not be detrimental to individuals seeking and requiring protection. If plausible conclusions are drawn from other sources of information which are sufficiently reliable, the investigation should be concluded at this point on the basis of the principle under EU law of the “effet utile” in the interests of effective refugee protection which respects human rights.
Furthermore, the enforced renunciation of the public expression of religious beliefs represents a serious human rights’ violation for the group of individuals concerned according to Article 9 (1) of the Qualification Directive, which in essence corresponds to significant persecution within the meaning of this provision. Even if the renunciation of all public religious activities as described above did not by itself constitute a relevant act of persecution, persecution would nevertheless be concluded on the basis of an evaluative overviewof this aspect with the above described multiple discrimination and restrictions which by themselves either do not establish asignificant probability of persecution in the specific case in question or do not present the required degree of severity. On account of this ultimately decisive overview, persecution is deemed to exist in the case of enforced renunciation of the public expression of religious beliefs according to Article 9 (1) (b) of the Qualification Directive (see also High Administrative Court of Baden-Württemberg, decision of 12.06.2013 - A 11 S 757/13 - ).
Ahmadis who have an inherent connection with their faith are not offered internal protection in Pakistan according to Article 8 of the Qualification Directive. There is no part of the country in which they are able to express their faith in a safe and reasonable manner. The legal framework governing interventions directly attributable to the Pakistani state is the same throughout the country.
On the basis of the impressions obtained from questioning the Applicant in the oral proceedings and the results of the taking of evidence, it was concluded that the Applicant is a member of the Ahmadiyya religious community who is closely bound and strongly influenced by her faith. The Applicant, an elderly and sick lady, would have to refrain from all public expression of her faith in Pakistan in a manner deserving of refugee protection.
Outcome:
The Applicant was recognised as a refugee.
Observations/comments:
The decision relates to the decisions of the Federal Administrative Court of 20.02 2013 (10 C 23.12) and the High Administrative Court of Baden-Württemberg of 12.06.2013 (A 11 S 757/13). With the entry into force of the Qualification Directive on 28.08.2007, the decades-long jurisprudence of the Federal Administrative Court in relation to persecution on religious grounds was amended in favour of the party concerned. The Federal Administrative Court had previously judged the seriousness of an infringing act on the basis of encroachment upon the core area of private religious activities or the broader area of public religious activities. This no longer applies in view of the provisions of Article 10 (1) (b) and in connection with the clarifying jurisprudence of the Court of Justice of the European Union (decision of 05.09.2012 C-71/11 and C-99/11). The Federal Administrative Court requested that the trial courts apply a “relationship consideration” in the above-mentioned decision whose aim is to render the persecution outcome more plausible. The relationship consideration, which is a ‘process of evaluative consideration’, should involve comparing the number of Ahmadis who are unlawfully practising their religion in public with the number of actual threatening acts of persecution. The High Administrative Court of Baden-Württemberg, to which the case was referred by the Federal Administrative Court in its decision of 12.06.2013, declared that the basic facts required for confirmation of this case could not be determined; this was supported by the Administrative Court of Gießen. It remains to be seen whether this decision will be upheld by the Federal Administrative Court.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 24 November 2009, 10 C 24.08 |
| CJEU - C-71/11 and C-99/11 Germany v Y and Z |
| Germany - Federal Administrative Court, 20 February 2013, 10 C 23.12 |
Other sources:
Foreign office, report on the asylum and displacement situation in Pakistan – progress report –18.05.2007
Foreign office, report on the asylum and displacement situation in Pakistan – progress report - 17.03.2010
Foreign office, report on the asylum and displacement situation in Pakistan – progress report - 01.07.2011
Foreign office, progress report Pakistan 02.11.2012
Foreign office, progress report Pakistan 02.12.2012
Hearing of expert witness G. before the People’s Court of Stuttgart 13.03.2013