Germany - Federal Administrative Court, 21 April 2009, 10 C 11.08
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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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. |
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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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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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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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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. |
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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. |
Headnote:
This case concerned the assessment of "group" persecution against Arab Sunnites in Iraq. In order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the entire group of persons affected by that persecution ( "density of persecution"). Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included.
Facts:
The applicant is an Iraqi citizen of Arabic ethnicity and Sunnite Islamic belief. He came to Germany in April 2006 and applied for asylum. The application was rejected as manifestly unfounded. The authorities, inter alia, found that the requirements of Art 60 (1) of the Residence Act (Art. 1 A. (2) Refugee Convention and Art 9 and 10 of the Qualification Directive) were not met.
Following the applicant’s appeal, the Administrative Court ordered the authorities to grant him refugee status as they found that he would be at risk as an Arab Sunni returning to Iraq. The High Administrative Court of Bayern rejected the authorities’ further appeal/"Berufung", where they argued that it was not probable that the applicant would be at risk of persecution from non-State actors and that it was not possible to carry out a detailed assessment and determination of the number and intensity of acts of persecution. Furthermore, it was found that the applicant could not find protection in other parts of his country of origin.
In their further appeal/"Revision", the authorities argued that the Court’s findings deviated from consistent case law regarding the issue of group persecution and its findings on the matter of density of acts of persecution were not sufficient.
Decision & reasoning:
The Federal Administrative Court explained in detail the legal requirements to establish the existence of group persecution. They noted that the risk of being persecuted can also result from acts of persecution against third parties; if they are persecuted for characteristics related to asylum (reasons for persecution Art 10 of the Qualification Directive) that they share with the applicant, and if the applicant, in case of return, would be in a similar situation regarding place, time and danger of recurrence (danger of group persecution). The court stated:
In this context it also needs to be considered if the persecution is only related to a certain unchangeable characteristic, e.g. religion, or if there have to be further characteristics in order to form a persecuted group and to assume that an individual person is being persecuted as a member of that group. The assumption of group persecution, meaning persecution of every single member of the group, requires a certain “density of persecution”, justifying a legal presumption of persecution of every group member. These principles, initially developed in the context of direct and indirect State persecution, are also applicable in the context of private persecution by non-State actors under Art. 60 (1) sentence (4) (c) of the Residence Act (in compliance with Art. 6 (c) of the Qualification Directive), which now governs explicitly private persecution by non-State actors.
Under the Qualification Directive, the principles developed in German asylum law in the context of group persecution are still applicable. The concept of group persecution is by its very nature a facilitated standard of proof and in this respect compatible with basic principles of the 1951 Refugee Convention and the Qualification Directive. Art 9.1 of the Qualification Directive defines the relevant acts of persecution, whereas Art 10 of the Qualification Directive defines the “characteristics relevant to asylum” as “reasons for persecution”.
The court found that in order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the whole group of persons affected by that persecution. Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included. The application of assessing group persecution is comparable to the European Court of Justice’s consideration of subsidiary protection under Art 15 (c) of the Qualification Directive (Elgafaji, 17 February 2009, C 465/07), linking the degree of danger for the population or parts of the population to the individual danger of an individual person.
By failing to assess this, the High Administrative Court’s decision has to be reconsidered.
Outcome:
The decision of the High Administrative Court was annulled and referred back to the High Administrative Court.
Subsequent proceedings:
Not known.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05 |
| Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06 |
Follower Cases:
| Follower Cases |
| Germany - High Administrative Court North Rhine-Westphalia, 29 October 2010, 9 A 3642/06.A |
| Germany - Federal Administrative Court, 5 May 2009, 10 C 19.08 |