Germany - Administrative Court of Oldenburg, 13 April 2011, 3 A 2966/09
Keywords:
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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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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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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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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 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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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:
Refugee status was granted to an Algerian woman who was at risk of forced marriage due to membership of a particular social group.
Facts:
The applicant applied for refugee status in Germany in September 2009. She stated that her father had died in a car accident in 2007. After that her family had been forced to move into a house in which four of her uncles lived. These uncles had ill-treated her severely, they had forbidden her to go to school and they had tried repeatedly to marry her to an older man.
The authorities rejected the application as they did not deem the applicant's statements to be credible. Furthermore, they argued that the Algerian state was sufficiently willing and able to offer protection. Accordingly, it was not deemed credible that the applicant had not been able to turn to state authorities for protection against the ill-treatment of her uncles.
The applicant appealed the authorities' decision.
Decision & reasoning:
The Administrative Court found that the appeal has merit. The authorities were obliged to grant refugee status to the applicant.
The Administrative Court refers to the fact that, according to German law, persecution for membership of a particular social group can also take place if a person's life, physical integrity or freedom is solely threatened on account of the person's sex (Section 60 (1) (3) of the Residence Act). Following the oral hearing, the Administrative Court considers the applicant's statement to be credible. According to the evidence gathered in the proceedings, the applicant was at risk of a forced marriage arranged by her uncles in Algeria. On three different occasions she had escaped from forced marriage. Because of this she was now at risk of being killed by her uncles.
The Administrative Court found that the risk of a forced marriage is sufficient to justify refugee status since it renders impossible an individual and self-determined way of life and fundamentally places at risk the sexual identity as a woman. It is true that Section 60 (1) of the Residence Act only refers explicitly to life, physical integrity and freedom. However, the Administrative Court takes the view that the right to sexual self-determination and the protection from sexual violence have to be included in the definition of “freedom” and “physical integrity” respectively.
That the right to sexual self-determination can be subsumed under the criterion of “freedom” is also supported by the Qualification Directive. Art. 9.2 of the Qualification Directive explicitly refers in paragraph a) to acts of physical or mental violence, including acts of sexual violence, and in paragraph f) to acts of a gender-specific nature.
The risk of persecution by her uncles also constitutes relevant persecution by non-state actors since the state, parties or organisations which control the state or a substantial part of the state's territory, are not able to protect her from persecution.
Whether the applicant had been in a position to find refuge in another part of Algeria at the time of her departure from the country is irrelevant. This is because (past) persecution which took place before the flight cannot be negated because of an protection alternative which existed at the time of the flight (cf. Federal Administrative Court, 24 November 2009, 10 C 24.08).
At present, especially when considering the personal circumstances of the applicant, (as in Art. 8.2 of the Qualification Directive) she cannot reasonably be expected to flee to other parts of the country, such as the big cities. It could be assumed that her family would not find her immediately if she went to a place other than her hometown. However, such a hiding place would not provide a durable solution. It is impossible to consider that the applicant could make a living on her own without support from her family. The applicant has not finished school and has no professional experience and therefore it would be almost impossible for her to find a source of income which might provide the means for her survival. There is no benefit system for the unemployed in Algeria. Usually, it is the family which provides for unemployed persons but this possibility is not available in the applicant's case.
Outcome:
The authorities were obliged to grant refugee status to the applicant.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 24 November 2009, 10 C 24.08 |
| Germany - Administrative Court Hamburg, 7 November 2005, 4 A 1970/03 |
| Germany - Administrative Court Oldenburg, 26 September 2007, 5 A 4647/04 |