Germany - Federal Administrative Court, 17 November 2011, 10 C 13.10

Facts:

The applicant is an ethnic Kurd from Mosul. He came to Germany in 2001 (before the downfall of Saddam Hussein's regime) and was granted refugee status. In 2006 the authorities revoked refugee status on the grounds that the circumstances which had led to the recognition had ceased to exist. Both the Administrative Court and the High Administrative Court dismissed the applicant’s appeal against the revocation. A further appeal (“Revision“) to the Federal Administrative Court was granted because of the fundamental significance of questions concerning the definition of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive. The Federal Administrative Court ruled in June 2008 that the requirements set by the High Administrative Court regarding the definition of an armed conflict were too strict and sent the case back to the High Administrative Court Bavaria (decision of 24 June 2008, identical in substance to decision Federal Administrative Court/Bundesverwaltungsgericht, 24 June 2008, 10 C 43.07).

In the new procedure the High Administrative Court again dismissed the appeal and found that the “density of danger” in the home region of the applicant was not high enough to justify the assumption that any civilian would face a serious individual risk. The court found that the statistical probability of being killed or injured in an attack was only 0.12 per cent in 2009. The applicant again asked for a further appeal (Revision) at the Federal Administrative Court and stated that the High Administrative Court had erroneously employed the term “density of danger” (originating from German case law's definition of a “group persecution”) for its assessment of an extreme risk without taking into consideration the special characteristics of subsidiary protection. Furthermore, the applicant argued that the sources describing the frequency of attacks were not adequately evaluated by the High Administrative Court.

Decision & reasoning:

The further appeal to the Federal Administrative Court was admissible. In contrast to the opinion of the High Administrative Court there was a legitimate interest in ascertaining protection from deportation status, even if the applicant already has a residence permit for other reasons (a permanent residence permit in the present case). This is because German law has insufficiently transposed European law insofar as the status of a person entitled to subsidiary protection has not been explicitly defined. This must not result in disadvantages for the applicant.

However, the further appeal to the Federal Administrative Court was not substantiated. Neither were there any individual “risk enhancing” circumstances, nor was the degree of danger in the applicant’s home region high enough to justify the assumption that any civilian would face a serious risk. The establishment of the relevant facts by the High Administrative Court does not meet with objections, neither does its approach in basing its findings on the concept of “group persecution”.

Nevertheless, it is true that the High Administrative Court has failed to carry out an “evaluating overview” of the situation. Such an evaluating overview should not only include the number of victims and the severity of harm, but also the situation of the health system and thus access to medical help. However, this omission in the findings of the High Administrative court does not affect the result of the decision as the applicant would only face a low risk of being injured.

Outcome:

The further appeal to the Federal Administrative Court was dismissed.

Subsequent proceedings:

None (the applicant had a permanent residence permit).