Germany - Adminstrative Court Trier, 23 March 2011, 5 K 1181/10.TR
Keywords:
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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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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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. |
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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:
A mother of two children was recognised as a refugee as there was sufficient probability of her being forced to undergo sterilisation in China due to violation of the one child policy. Forced sterilisation constitutes a violation of the basic human right to physical integrity and human dignity to such an extent that it is without doubt relevant under Section 60 (1) of the Residence Act. / Art 1 A 2 of the 1951 Refugee Convention.
Facts:
The applicant, 43 years old, is a Chinese citizen. She came to Germany in May 1996 and applied for asylum under German law and for refugee status. She stated that she had suffered persecution as she had a second child. The application was rejected.
In Germany, the applicant gave birth to two more children, who were, at the time of the decision, 12 and 13 years old. On the 23 October 2009 she filed a subsequent application for asylum. In support of her application she alleged that, in case of return to China, she would be at risk of measures as part of China’s family planning policy, because she had given birth to two more children in Germany. By decision of 27 September 2010, the authorities rejected her application. The applicant appealed this decision. During the court procedure, she stated in detail that due to the one-child policy in China she would be at risk of forced sterilisation and political persecution.
Decision & reasoning:
The applicant was eligible for refugee status under Section 60 (1) of the Residence Act. The court stated:
It is without doubt that a forced sterilisation, enforced by the authorities, constitutes gender-based persecution according to Section 60 (1) sentences (1) and (3) of the Residence Act, connecting this act of persecution to their membership of the particular social group of women, since the forced sterilisation of a human being constitutes a violation of the basic human right to physical integrity and human dignity to such an extent that it is without doubt relevant under Section 60 (1) of the Residence Act.
The court is convinced that there is sufficient probability that the applicant, in case of return to her country of origin, is at risk of being sterilised against her will by local authorities in her home province. This danger is not only proven by the applicant’s statement in this lawsuit, but also by the Foreign Office, which also confirm that time and again, enforcement and control of the State’s family planning policy involves severe human rights violations including forced sterilisation and coercive late term abortions. In rural areas, according to the Foreign Office, there are time and again assaults by gangs of local thugs, hired by local authorities, whose assaults comply with the aims of the government policy. In these cases, protection of the persons concerned against abuse of state power can hardly be achieved. This concerns for example the enforcement of the family planning policy, the one-child-family. The reports by the Foreign Office do not indicate that subordinate authorities are willing to decisively combat forced sterilisations, in such cases forced sterilisations are considered as mere infringements on the part of local authorities. In summary, the court is of the opinion that it is sufficiently probable that the applicant, like other mothers with several children, would be at risk of being subjected to forced sterilisation. As explained above, this constitutes an act of persecution according to Section 60 (1) sentence 1 of the Residence Act by state or non-state actors of persecution.
Outcome:
The authorities were ordered to grant the applicant refugee status.
Observations/comments:
An English translation of Section 60 (1) of the Residence Act is available on the website of the German Federal Ministry of Justice
Residence Act (Aufenthaltsgesetz):
http://www.gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html#p0718