Germany - Federal Administrative Court, 1 June 2011, 10 C 10.10

Facts:

The applicant is a Turkish citizen of Kurdish ethnicity. He applied for asylum in Germany in September 1996. His application was rejected by the German authorities in January 1997. The Administrative Court overturned this decision and asked the authorities to grant refugee status. The Administrative Court found that the applicant had not been persecuted at the time when he left Turkey, however, there was a considerable probability of political persecution upon return as he had become an active member of a sub-organisation of the PKK in Germany.

In the light of the political reform process in Turkey, the German authorities issued a revocation of the refugee status in July 2008. The Administrative Court turned down an appeal against the revocation decision. Upon further appeal the High Administrative Court of Schleswig-Holstein amended the lower court's decision and declared the revocation null and void. According to the High Administrative Court it had to be safeguarded in cases of recognised refugees that the possibility of a repetition of persecution could be excluded with sufficient certainty in the foreseeable future. In spite of the reform process in Turkey this could not be assumed.

The High Administrative Court granted leave for a review ("Revision") at the Federal Administrative Court.

Decision & reasoning:

It was found that the appeal (revision) to the Federal Administrative Court had merit as the High Administrative Court's decision violated federal law.

The High Administrative Court had applied a wrong standard of probability for its assessment of the likelihood of (renewed) persecution which it had carried out when establishing the reasons for the revocation of refugee status. The case therefore had to be sent back to the High Administrative Court.

The relevant norm for the legal assessment of the revocation decision is found in Section 73 of the Asylum Procedure Act. In Section 73(1) Second Sentence of the Asylum Procedure Act, Germany has transposed Art 11.1(e) and (f) of the Qualification Directive into national law. Therefore an interpretation of Section 73(1) of the Asylum Procedure Act has to comply with the relevant provisions of the Directive which in turn are based on Art 1 C (5) and (6) of the 1951 Convention. This also applies to cases (like the present one) in which the applications for protection took place before the Qualification Directive took effect (cf. Federal Administrative Court of 24 February 2011 - BVerwG 10 C 3.10 - M18447). 

According to Art 11.1(e) of the Qualification Directive, a third country national ceases to be a refugee if he or she can no longer continue to refuse to avail him or herself of the protection of the country of nationality, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist. According to Art 11.2 of the Qualification Directive the member states have to examine in this context whether the change of circumstances is of a significant and non-temporary nature.

i) The European Court of Justice has ruled that the term 'protection of the country of nationality' according to Art 11.1 (e) of the Qualification Directive only refers to the 'protection' which has up to that point been lacking, namely protection against the acts of persecution referred to in the Directive (2 March 2010, Case C-175/08 et al., Abdulla et al., para. 65). In this context the European Court of Justice pointed out that the termination of refugee status because of changes in the country of origin basically has to be regarded as a mirror image of the recognition of refugee status: The circumstances which demonstrate a country's ability or inability to ensure protection may thus result both in the granting of refugee status and "by means of the opposite conclusion," in the cessation of refugee status (op.cit., para. 68).

According to Art 11.2 of the Qualfiication Directive, the change of circumstances must be of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well founded. The European Court of Justice has argued that a change of circumstances in that sense has taken place when the factors which formed the basis of the refugee's fear of persecution, and which resulted in the recognition of refugee status, may be regarded as having been permanently eradicated (op. cit., para. 73).

As a requirement for the assumption of a significant change of circumstances, it has to be established on the basis of new facts that the basis for the determination of the likelihood of future persecution has changed significantly. The passage of time by itself does not lead to a change in the situation. 

As a result of the symmetry of the requirements for the recognition and the cesssation of refugee status it is not possible any longer to adhere to the former case law of the Federal Administrative Court concerning Section 73 of the Asylum Procedure Act which had traditionally used different standards for the determination of the likelihood of future persecution. According to that concept, revocation of refugee status presupposed that the change of the relevant circumstances in the country of origin had to be of such a nature that a repetition of those measures of persecution which had led to the flight could be ruled out for the foreseeable future with sufficient certainty (hinreichender Sicherheit). This standard of "sufficient" safety is lower in comparison to the standard of "considerable" probability (beachtliche Wahrscheinlichkeit) which was developed in the case law of the Federal Constitutional Court and the Federal Administrative Court with regard to the constitutional right to asylum in cases of former persecution and later transferred to the refugee status and to the requirements for revocation of refugee status. 

The concept of different standards of probability for the determination of the likelihood of future persecution is unknown to the Qualification Directive. Instead, the Directive uses an evidence-based approach, as it is defined in Art 14.2 and Art 4.4 of the Qualification Directive, and applies to this approach a uniform standard for determining the likelihood of future persecution both for the granting and the cessation of refugee status.

The Qualification Directive thus only refers to one standard of probability, according to which a change in circumstances has to be assessed on the basis of whether there is still a "considerable" probability of persecution (European Court of Justice, op.cit., para. 84 et seq., 98 et seq.).

ii) As a second precondition for revocation, Art 11.2 of the Qualification Directive stipulates that the change in the circumstances must be of a non-temporary nature. This means that Member States have to demonstrate that there is a factual basis for the assumption that the change in circumstances is  stable, i.e. the factors on which the persecution was based have to be eliminated for the foreseeable future. In the case of a country in which a regime has been overthrown, a change of circumstances of a permanent nature further presupposes (as a rule) that a state or other actor of protection within the meaning of Art 7 of the Qualification Directive is present in the country of origin and has taken appropriate steps to prevent the persecution that formed the reason for the granting of refugee status (cf. decision concerning Iraq, Federal Administrative Court of 24. February 2011, - 10 C 3.10 -, asyl.net, M18447). If a country is concerned (as in the present case), in which a regime is still in power, high demands have to be imposed on the concept of a change of circumstances. However, it cannot be required that the continuity of the change in political circumstances has to be guaranteed for an unforeseeable period.

Outcome:

The case is sent back to the High Administrative Court of Baden-Württemberg.