Germany - Administrative Court Köln, 15 September 2011, 18 K 6103/10.A
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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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
An applicant from Guinea was recognised as a refugee. The court found that because of his homosexuality he faced a threat of persecution from family members. The State was unwilling or unable to provide protection.
Facts:
The applicant is citizen of Guinea. He entered Germany in December 2009 and applied for asylum under German law and for recognition as a refugee. He stated that he is homosexual. After his family learnt about his sexual orientation, they threatened to kill him, he fled Guinea as a result. By decision of the 13 September 2010, the application was rejected. The applicant appealed this decision.
Decision & reasoning:
The applicant was not eligible for asylum under German law. He could not prove that he came, without transit through a so-called safe third-country, by plane or by ship to Germany. Therefore, the court assumed that he came to Germany by land through a safe third country.However, the applicant was eligible for refugee status under Section 60 (1) of the Residence Act. The court stated:
The conditions of Section 60 (1) of the Residence Act are met. The applicant, due to his homosexuality, would be at risk of falling victim to treatment violating his human rights and that is relevant to asylum, without having any option of internal protection.
The court considers the applicant’s statement that he was threatened with death by his family because of his homosexuality is credible. Unlike the asylum authorities, the court considers understandable the applicant’s statement that his family did not, in order to avert shame, conceal his homosexuality. Concealment might be a response of a family to behaviour of a family member that is forbidden by religion or tradition. However, as it is demonstrated by many cases of killings of children and siblings for reasons of “family honour”, in Islamic families such forbidden behaviour of a family member is not always concealed. In interpreting the Koran, many conservative representatives of Islam demand the punishment of sex acts by people of the same sex, including the death penalty. Against this background, it may be the case that a traditional Islamic family does not conceal the homosexuality of a family member, but condemns it publicly. The applicant’s statement, that he was excluded by his family, physically hurt and threatened with death, therefore, is not a priori unrealistic and implausible.
As a homosexual, the applicant is a member of a particular social group according to Section 60 (1) sentences (1) and (6) of the Residence Act, and because of his membership of this social group he has reason to fear being exposed to targeted rights violations. It is not relevant, that the mistreatments the applicant described credibly during his personal interview were not inflicted on him by state employees, but by neighbours and relatives. In this respect, the applicant cannot rely on the protection of government authorities, since the Guinean State is not able or unwilling to provide protection from persecution (Section 60 (1) sentence (4) (c) of the Residence Act). Guinean society as a whole is very traditional with a Muslim population of 85 %. Religion, but also enormous poverty and the lack of a state organised welfare system result in a strictly hierarchical and patriarchal society. Traditional customs and Islamic laws are opposed to state laws, whereas the State is hardly able and willing to enforce its provisions and stipulations.
Considering this information, there are no plausible reasons to believe that the applicant, who had been persecuted already before his departure, would not be threatened again by such persecution. He could not expect to be provided with protection from state authorities against assaults by members of his family.
Outcome:
The asylum authorities were required to grant the applicant refugee status.