Germany - Federal Administrative Court, 31 January 2013, 10 C 15.12
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Federal Administrative Court |
| Date of decision: | 31-01-2013 |
| Citation: | 10 C 15.12 |
Keywords:
| Keywords |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
In order to determine whether an Applicant is exposed to a significant, specific risk stemming from an armed conflict, reference should be made to the actual target location of the foreign national upon return in the case of a localised armed conflict. This is often the region of origin of the Applicant. If the region of origin cannot be considered as the target location due to the risk facing the claimant, the latter may only be referred to another region in the country subject to the requirements of Article 8 of the Qualification Directive.
With regard to the evaluation as to whether extraordinary circumstances exist which do not come under the direct responsibility of the target deportation state and which prohibit the deporting state from deporting the foreign national according to Article 3 of the European Convention on Human Rights, reference should be made to the target deportation state as a whole in order to verify whether these circumstances exist in the location in which the deportation ends.
Facts:
The Applicant arrived in Germany in February 2009. In March 2010 his asylum application was declined. In response to his claim, the Administrative Court established that the requirements for subsidiary protection had been fulfilled. The authorities appealed against this decision.
In its decision of 27 April 2012, the High Administrative Court agreed with the authorities and stated that the requirements for subsidiary protection did not exist according to Article 15(c) of the Qualification Directive. Since there is no country-wide armed conflict in Afghanistan, an individual threat would only apply if the conflict extended to the actual target location of the Applicant upon return. This would be the location in which he last lived or to which he would be likely to return. In the Applicant’s case, this would not be his home region of Helmand, but rather Kabul where he most recently lived. There is no longer any internal armed conflict in that region. With the exception of a few spectacular attacks, the security situation in Kabul is considered relatively stable as a whole and significantly calmer than it was around ten years ago.
The Applicant has appealed to the Federal Administrative Court for a review.
Decision & reasoning:
The Applicant’s review was valid and well-founded. In verifying the requirements for subsidiary protection, the High Administrative Court did not refer to the Applicant’s region of origin but rather to the circumstances in Kabul as the only potential target deportation location at present. In general, however, reference is made to the Applicant’s region of origin and not to the region which a detached observer might reasonably choose or the region to which the foreign national concerned would like to go from a subjective point of view. Deviation from the rules cannot be justified by the claim that the foreign national would be exposed to risks in the region of origin which the Qualification Directive is intended to protect against with subsidiary protection. This can be determined from the systematic context of the deportation bans under EU law in the provisions concerning internal protection (Article 8 of the Qualification Directive). If the region of origin is not taken into account as the target location because of the risks facing the foreign national, the latter may only be referred to another region in the country subject to the limited requirements of Article 8 of the Qualification Directive. The concept of the “actual target location of return” is therefore not a purely empirical concept in which the most probable or subjectively desirable region of return is to be applied.
A departure from the region of origin can also not be justified by the fact that the foreign national has lost his personal connection with his region of origin as the result of an armed conflict in which family members have been killed or have also left the region. Insofar as the declining subjective connection with the region of origin has been justified by circumstances which are a direct consequence of armed conflict (e.g. impairment of the social and economic infrastructure, continued worsening of the supply situation) and reluctance to return to the region of origin is understandable due to poor living conditions and a lack of future prospects, these aspects are considered relevant from the point of view of protection. However, the region of origin is not / no longer the point of reference if the foreign national had already been released from this region prior to his departure, irrespective of the circumstances triggering the latter, and had moved to another part of the country with the intention of living there for an unlimited period. The region of origin is not considered to be the point of contact for the examination of subsidiary protection in the case of a voluntary departure of this kind. However, the Federal Administrative Court cannot reach a conclusive decision in this respect and the proceedings have to be referred back to the High Administrative Court.
Outcome:
The Applicant’s review was upheld.
Subsequent proceedings:
Unknown.