Germany - Administrative Court Köln, 12 October 2007, 18 K 6334/05.A
Keywords:
| Keywords |
|
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. |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
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. |
|
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. |
|
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." |
|
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. |
|
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. |
|
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. |
|
Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
Headnote:
Currently every Sunnite and Shiite from Central and South Iraq is to be considered as a refugee within the meaning of Section 60 (1) Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations.
Returnees who originate from regions of mixed denominations cannot obtain internal protection in any part of Iraq.
Facts:
The applicant is Iraqi citizen of Arab ethnicity and is Shiite. He entered Germany, together with his mother, in March 2003 and applied for asylum. The application was rejected in a decision of the 17 January 2005. The applicant appealed this decision, arguing that he and his mother were threatened by his father’s family in Iraq. The family has a close relationship with influential persons and holds him and his mother responsible for the fact that they were subjected to repression from the Hussein regime.
Decision & reasoning:
The applicant was recognised as a refugee. The court stated:
The differentiation between the considerable probability and the so called facilitated standard of proof, common in German case law, correlates in principle with the provision of Art. 4.4 Qualification Directive, which stipulates that the fact that an applicant has already been subject to persecution or serious harm or to direct threat of such persecution or such harm is a serious indication of the well-founded fear of persecution. There is some indications that the standards of proof, developed in German case law, have a tendency of focusing too strongly on an objective assessment, so that now the focus should be more on the subjective element of fear of persecution.
According to these criteria, the requirements under Section 60 (1) of the Residence Act are met, so that the applicant must be recognised as a refugee.
Within Iraq, as the violence constantly increases, denomination-based violence between Sunnites and Shiites has become a particular pattern of persecution, and claims the highest number of lives of the Iraqi population. Systematic expulsions on a large scale are currently taking place in Central- and South-Iraq, which have the character of denomination-based ethnic cleansing.
Areas with mixed denominational population, within Iraq as a whole are affected by denominationally motivated ethnic cleansing, including all big cities like Baghdad, Mosul, Kerkuk, Basra, but also provinces like Aslah-Al-Din, Diyala and Babil.
In principle, even the separation of the different denominations did not improve the security situation. Both Sunnite and Shiite groups are equally responsible for extensive human rights violations against members of the other side.
The court is convinced that currently every Sunnite and every Shiite from Central- and South-Iraq is a refugee within the meaning of Section 60 (1) of the Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations, in particular Baghdad. Returnees are generally even at a higher risk of persecution, even though there are no precise figures due to lack of significant returns.
If the requirement of previous case law1 regarding internal protection, even under consideration of Art. 8 of the Qualification Directive, can be established without restriction or if now more than just the mere securing of livelihood is required, it is not relevant to this decision, because, even under the previous requirements, the applicant cannot obtain internal protection in the Kurdish regions of North Iraq or in other regions of Central- or South-Iraq.
Central- and South-Iraq as a whole, owing to the overall disastrous security situation and the ubiquitous risk of again becoming a victim to ethnic cleansing, are not suitable places of internal protection. Apart from that, one cannot readily assume that Sunnite and Shiite refugees, who originate from areas with a mixed denominational population, can settle in denominational homogenous areas. The local authorities of the different provinces have closed their borders for all internally displaced persons or restricted their settlement referring to the burden on infrastructure.
Even in the Kurdish areas of North-Iraq, the settlement of Non-Kurds from Central- and South-Iraq has been hindered by the fact that without a character-witness, who must be known to the local authorities and who has to personally vouch for that person, an official registration cannot be obtained. Therefore, they can receive neither social assistance nor food aid. Combined with the rents, that have increased significantly since the end of war and generally exceed the average income by far, relocation is actually impossible, unless contacts to relatives exist, who are willing and able to accommodate a family member.
Outcome:
The asylum authorities were obliged to grant refugee status to the applicant.
Subsequent proceedings:
Not known.
Observations/comments:
1. In this context, internal protection under the previous case law of the Constitutional Court and the High Administrative Court required that the applicant must be able to secure his/her livelihood in that region. Generally, the applicant must not be exposed to disadvantages and risks that are similar to interferences with rights protected under refugee law, if these disadvantages and risks do not exist at the place of origin (see the landmark decision of the Federal Constitutional Court of 10 July 1989).