Germany - Administrative Court München, 10 December 2008, M 8 K 07.51028
Keywords:
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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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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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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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Serious harm
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. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “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.” |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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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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. |
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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 applicant was not granted refugee status or protection against deportation in accordance with Section 60 (2) through (7) of the Residence Act. The court found:
- A single woman with a “Western” lifestyle is not at risk of gender-based political persecution by non-State actors in Iraq.
- The risk of the applicant becoming a victim of an honour killing (or respectively a weaker, non-life threatening disciplinary measure by her clan) because of her moral conduct, disapproved by her clan, constitutes an increased individual risk. However, this risk is not the result of arbitrary violence, but constitutes a typical general risk.
Facts:
The applicant is Iraqi citizen of Arab ethnicity and Sunnite belief. She came to Germany in December 2002 and applied for asylum. The application was rejected; her appeal against that decision was dismissed by decision of 21 December 2004.
The applicant remained in Germany and in August 2007 she filed a subsequent application for refugee status, under Section 60 (1) of the Residence Act, and alternatively for protection against deportation under Section 60 (2) through (7) of the Residence Act. She argued, inter alia, since her initial application she had adopted a “German” lifestyle; in particular, she had adopted an independent way of life. This had not been accepted by her widowed father. Therefore, she could not expect any help from him in case of return. During the court procedure, she added she would be threatened with violence, permanent restrictions on her freedom and risks to her life, originating from her family-members living in Kirkuk. Her family has been informed by her brother, who lives in Germany, about her moral conduct and her relationships with men. Her family would not refrain from honour killing.
Decision & reasoning:
The applicant failed to successfully establish persecution by (mainly male) members of her extended family, because of her Western life style involving contact with men, since this threat to life or freedom was not related to her race, religion, nationality, her membership to a particular social group or her political conviction.
The applicant’s attempt to link her fear of persecution to the fact of being a (single) woman was not successful. Harassment perpetrated by members of her clan were, according to the court, obviously not related to her inalienable characteristic as a woman, but to the fact that she does not want to behave according to the moral standards of her clan. This, however, is not protected under Section 60 (1) of the Residence Act. The court stated:
Furthermore, the applicant cannot claim protection from deportation under Section 60 (2) through (7) of the Residence Act. Deportation of Iraqi citizens is currently prohibited by decree; there are no indications that this might be changed in the near future.
Beyond this, the court cannot establish a nationwide specific individual threat to the applicant, (only a general risk) despite her status as a possible returnee. A different assessment does not even follow from the new case law of the Federal Administrative Court, according to which the provision of Section 60 (7) (3) of the Residence Act, (referring to protection from deportation by the suspension of deportation in case of general risks) has to be applied in line with the Qualification Directive, which means that the provision in German law does not include those cases in which, on the basis of an individual assessment, the conditions of granting subsidiary protection under Art 15 (c) of the Qualification Directive are fulfilled (Federal Administrative Court, 24 June 2008,10 C 43.07). The distinguishing characteristics of “substantial individual danger to life and limb” are equivalent to those of a “serious and individual threat to life or person” within the meaning of Art. 15 (c) of the Qualification Directive. It must be examined whether the threat arising for a large number of civilians resulting from an armed conflict, and thus a general threat, is so aggregated in the person of the applicant as to represent a substantial individual danger within the meaning of Section 60 (7) (2) of the Residence Act. Such individual circumstances that aggravate the danger may be caused by one's membership of a group. In this context in Iraq, lower courts' decisions have mentioned membership in one of the political parties, for example, or membership in the occupational group of journalists, professors, physicians and artists.
As already established above, the applicant is not at risk due to her membership to a particular group, which, at the same time, excludes the existence of risk aggravating circumstances for the same reason.
Another condition for assuming an individually aggravated threat, taken from the statements of reasons for the Residence Act1, is that the applicant must be threatened with danger as a consequence of “indiscriminate violence”. General dangers of life, which are simply a consequence of armed conflicts, for example due to the deterioration of the supply situation, cannot be considered for the assessment of the density of risks.
As far as the applicant claims she will be a victim of an honour killing (or respectively a weaker, non-life threatening disciplinary measure by her clan) because of her moral conduct, disapproved by her clan, she is in fact subject to an increased individual risk. However, this risk is not a result of arbitrary violence, but is a target-oriented, predictable danger, aimed directly at the applicant, which is an expression of a criminal attitude among some individuals of her culture of origin, that even in Germany is noticeable. Like in any society characterised by anarchic circumstances, this risk may intentionally affect everybody who does not submit to "fist law"2. This risk emerges and prospers in the absence of a functional constitutional order based on peace, providing for corresponding punishment and is, therefore, a typical general risk.
Outcome:
The appeal was dismissed.
Subsequent proceedings:
Not known.
Observations/comments:
1. This refers to the decision of the Federal Administrative Court of 24 June 2008, 10 C 43.07(summarised on EDAL), mentioned above. This decision then again refers to the statements of reasons for the Residence Act. An English translation is available at: http://www.bverwg.de/enid/1324d44ee0800e3af30831216bab03ce,0/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_43__7_jo.html .The condition mentioned in the present decision can be found in paragraph 17 of the decision of the Federal Administrative Court.
2. The German term used in the decision is "Faustrecht des Stärkeren", which means "fist law" or "law of the jungle" or "right to private warfare".
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 24 June 2008, 10 C 43.07 |