Germany - Administrative Court Neustadt a.d.W., 8 September 2008, 3 K 753/07.NW
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) 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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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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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:
The applicant, a lesbian from Iran, was recognised as a refugee. The court found:
- It is unreasonable for homosexuals to refrain from sexual activities in order to avoid persecution.
Although there is no systematic persecution of homosexuals in Iran, there is a considerable risk of detection and persecution.
Facts:
The applicant is an Iranian citizen. She entered Germany, together with her mother, for the first time in December 1995. Their asylum applications were rejected in July 1996.
Upon her re-entry in April 2007 by land she filed a subsequent application for asylum. She explained this application as follows: She left Iran, as her sexual relationship with her girlfriend had been discovered. While she escaped, her girlfriend was sentenced to eight years in prison for immoral behaviour. Her friend evidently betrayed her from prison, because the authorities began searching for the applicant and, after she was not found, her parents were summoned.
By decision of 6 June 2007, her application for asylum under German law, and recognition as a refugee were rejected. She appealed the decision to refuse refugee status under Section 60 (1) Residence Act. The court considered evidence on the applicant’s sexual orientation by obtaining a sexual-psychological expert opinion.
Decision & reasoning:
The applicant satisfied the court that she belonged to a particular group whose members share characteristics that are so fundamental to their identity that they should not be forced to renounce them, and that in Iran the group has such a distinct identity that it is perceived as being different by the surrounding society (Art. 10 (1) (d) sentence 1 of the Qualification Directive. The court found that the applicant’s sexual orientation was an essential element of her personality. This was established by the sexual-psychological expert opinion. Alhough the applicant’s explanations regarding the events in Iran that triggered her escape were not conclusive, these reservations did not justify concluding the applicant is not homosexual.
It would be unreasonable, according to the court, due to her homosexuality, to require the applicant to return to Iran, even if it is not yet known by the local authorities. The court found:
In Iran, homosexual acts are criminalised, but a homosexual disposition is not. Assessing the extent and the intensity which these acts are the subject of criminal prosecutions in Iran is not possible, due to the lack of transparency of the Iranian justice system. Considering the information at hand, the court concludes that a systematic persecution of homosexuals is not currently taking place and the persecution of homosexual behaviour is not considered probable, at least as long as the sexual life is lived privately and in hiding and the person concerned does not attract the attention of the Iranian criminal prosecution authorities, with the result that the person, in case of return, would be exposed to an intensified interest of observation and prosecution on the part of the Iranian authorities.
However, the applicant, in case of return, would be at risk, with considerable probability of being punished, contrary to human rights, if her homosexual disposition was discovered. This applies, even though her explanations regarding the discovery and conviction of her girlfriend were not considered credible and, therefore, the applicant does not benefit from the facilitated standard of proof of a person who had already been subject to persecution. Considering the current legal position and legal practice in Iran, the applicant is at risk of political persecution with considerable probability.
Homosexuality is an essential characteristic of the applicant’s personality. According to the expert opinion’s findings, the applicant has an “irreversible” homosexual orientation, regarding her sexual structure, her sexual behaviour and her sexual identity. She could only avoid her homosexual disposition being detected by abstaining from sexual activities. Alternatively, she would have to live in constant fear of being detected.
Homosexuality is an essential means of expression of human personality and therefore belongs to the private sphere, protected by international human rights law (Art. 8 ECHR). Since sexual identity constitutes an essential part of the personality of every human being, forcing a person to suppress this part of their personality would constitute a violation of human dignity. Therefore, the person concerned cannot be required to renounce sexual behaviour solely for the reason that his/her homosexual behaviour does not comply with the majority. This, however, would be required from the applicant if she had to return to Iran.
The circumstances in Iran and the fact that the applicant cannot be required in the long term to suppress her sexual disposition have to be considered when evaluating the decision, because even the applicant’s own future behaviour, triggering his/her persecution, has to be taken into account, if it is expected to be more or less inevitable and, by this, the threat for the asylum seeker becomes so imminent that it has to be classified as relevant to their asylum claim just like an imminent danger.
Outcome:
The authorities were obliged to grant refugee status to the applicant.
Subsequent proceedings:
Not known.
Observations/comments:
For further information see the study - Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, September 2011. The original document in English is on the website of the University of Amsterdam at http://www.rechten.vu.nl/nl/Images/web2_110098_FH-DE_tcm22-241574.pdf.