Germany - Administrative Court Stuttgart, 14 March 2011, A 11 K 553/10
Keywords:
| Keywords |
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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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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). " |
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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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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:
Rights violations resulting from a forced marriage, including the use of physical and mental violence, constitute severe violations of basic human rights in terms of Art 9.1 (a) of the Qualification Directive.
The Iranian state is neither able nor willing to protect women against persecution by relatives in case of forced marriage.
Facts:
The applicant, born in 1979, is an Iranian citizen. She applied for refugee status on 8 June 2009 on the grounds that her father had chosen a future husband for her, who was much older ( he was the same age as her father) and would not allow her to engage in further professional activity. She also didn’t want to marry this man because she did not love him. In order to overcome the applicant’s reluctance, her father used force. After her attempts to escape the marriage failed, she pretended to agree in order to end her father’s mistrust and surveillance. She bought a wedding dress and participated in the wedding preparations. At the same time, she planned and organised her escape from Iran. Her application was rejected in January 2010. The applicant appealed this decision.
Decision & reasoning:
A forced marriage affects both the woman’s right to self-determination and autonomous living, as well as her right to sexual self-determination. The dilemma resulting from a forced marriage surrenders the woman permanently, and without prospect of help, to the sexual impulses of the chosen husband, as his sole object of satisfaction or for the purpose of reproduction. Therefore, violations of rights connected with a forced marriage that include the use of physical and mental violence, involve a severe violation of basic human rights in terms of Art 9.1 (b) of the Qualification Directive.
Furthermore, a forced marriage contradicts Art 16.2 of the Universal Declaration of Human Rights, which provides that marriage should be entered into only with the free and full consent of the intending spouses.
The persecution threatening the applicant before her departure from Iran was linked to the persecution ground of gender and membership of the particular social group “unmarried women from families whose traditional self-image also demands a forced marriage” (Art10 .1 (d) of the Qualification Directive).
The persecution threatening the applicant originated from non-State actors (Section 60 (1) sentence 4 (c) of the Residence Act). Single persons are also classified as non-State actors and therefore so is the applicant’s father.
The applicant, in case of return to Iran, would not be protected sufficiently against forced marriage. The Iranian state is neither able nor willing to protect women against persecution by relatives in case of forced marriage.
Outcome:
The authorities were obliged to grant the applicant refugee status.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 27 April 2010, 10 C 5.09 |
| Germany - Federal Administrative Court, 17 July 2006, 1 C 15/05 |
Follower Cases:
| Follower Cases |
| Germany - Administrative Court Augsburg, 16 June 2011, Au 6 K 30092 |