Germany - Federal Administrative Court, 18 December 2008, 10 C 27.07
Keywords:
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
Headnote:
If a subsequent application is based on “post-flight reasons” created by the applicant, he has to provide good reasons why he has become politically active or has intensified his activities.
As a rule, “post-flight reasons” which have been created by the applicant following the termination of an asylum procedure are not relevant for granting refugee status. An exception to this rule may be given if the activities which the applicant engaged in since he left the country of origin constitute a continuation of convictions which have been practiced before. However, activities which fulfil these criteria are not by themselves sufficient to constitute an exception to the rule. In addition the applicant has to provide good reasons to explain why he has become politically active or has intensified his activities after an unsuccessful earlier asylum application.
Facts:
The applicant is a Kurdish man from Turkey. His first asylum application in 1998 was rejected as manifestly unfounded. His second application in 2003 was based on alleged persecution while he was back in Turkey between 2000 and 2002 and on various articles he published in a pro-Kurdish newspaper. He was granted refugee status by the authorities but this decision was challenged be the “Federal Commissioner for Asylum Matters” (the now defunct “Bundesbeauftragter für Asylangelegenheiten”). Both an Administrative Court and a High Administrative Court upheld the initial decision to grant refugee status, claiming that activities which the applicant had undertaken since 2003 (a series of articles for pro-Kurdish newspapers) provided sufficient reasons for granting refugee status, even if the applicant's statements on his alleged stay in Turkey between 2000 and 2002 were met with doubts. The Federal Commissioner asked for a review (“Revision”) of the High Administrative Court's decision which was granted by the Federal Administrative Court.
Decision & reasoning:
a) In the former instance the appeals court (i.e. the High Administrative Court) had assumed that the applicant was at risk of political persecution because of “exposed” pro-Kurdish activities which he engaged in while his subsequent application was under review. According to the Federal Administrative Court the reasoning of the High Administrative Court is not reconcilable with Section 28 II of the Asylum Procedure Act which determines as a rule that refugee status cannot be granted if a subsequent application is based on circumstances which the applicant has created by his own decision after the termination of an earlier procedure.
The Federal Administrative Court does not agree with the High Administrative Court's assumption that an exception from this rule was established if the activities which the applicant engaged in since he left the country of origin constitute a continuation of convictions which have been practiced before: At least since the implementation of the Qualification Directive and the corresponding modification of the relevant section of the Asylum Procedure Act in 2007 such a continuity (in terms of content and time) of a political conviction could (only) serve as an important indication that an exception from the rule was given, yet it was not in itself a sufficient argument:
“Instead, the asylum seeker has to provide good reasons as to why, following an unsuccessful asylum procedure, he has started to engage in political activities in exile or why he has intensified previous activities.” (p. 8)
b) Under Section 28 II of the Asylum Procedure Act all subsequent applications are as a rule under suspicion to be abusive (“regelhaft unter Missbrauchsverdacht”). Therefore the burden of proof lies with the applicant who has to refute the legal assumption that his claim is abusive.
In contrast, both an earlier version of the German Asylum Procedure Act and the Commission's draft version of the Qualification Directive contained a different regulation aimed at preventing “abusive” subsequent applications: In both cases the wording suggested that only such circumstances were to be rejected which the applicant had created with the purpose of basing his application upon. Accordingly, the burden of proof for the abusive nature of the applicant's claim would have lain with the authorities. However, the final wording of the Qualification Directive contains the optional regulation of Art. 5 (3) which has been transposed by the German legislative into Section 28 II of the Asylum Procedure Act.
Therefore the applicant has to dispel the suspicion that he has engaged in political activities or intensified them solely or in first place to obtain refugee status. The judge has to make an overall assessment of the applicant’s personality and of his motivation to engage in or to intensify political activities against the background of the applicant's former statements and of his pre-flight history.
c) The exclusion from refugee status according to Art. 5 (3) of the Qualification Directive is also in line with the 1951 Refugee Convention.
The Federal Administrative Court accepted that Art. 1 A of the Convention does include the so-called “refugiés sur place”, i.e. persons which have become refugees after entering the territory of the host state. The conclusion drawn from this in the UNHCR handbook (and other sources) is that post-flight circumstances created by the applicant could in principle be constitutive for refugee status and should not be as such subjected to legal reservations. However, the Court did not agree that this conclusion was imperative and it points to other sources which claim that the term “events” referred to in Art. 1 A of the Convention only relates to events in the country of origin and not to activities of the applicant in the host state. Furthermore, states have to maintain the means to regulate political activities of foreigners and to extradite them if necessary. This option could be removed if the Convention was interpreted too strictly.
However, this issue is left open in the end as the principle of non-refoulement of Art. 33 of the Convention does not provide for a certain status but only guarantees that no deportation must take place. Therefore exclusion from refugee status does not violate the Convention as long as other forms of protection are available.
Outcome:
The case was referred back to the High Administrative Court.
Subsequent proceedings:
The case was referred back to the High Administrative Court Niedersachsen. No decision by the High Administrative Court has been published as at May 2011.