Germany - Federal Administrative Court, 5 May 2009, 10 C 21.08

Facts:

The applicants are a married couple from Chechnya. The husband is of Armenian ethnicity, his wife is an ethnic Chechen. The couple came to Germany in August 2001 and applied for asylum. According to their statement they had been arrested together with the husband's brother in February 2000 and severely mistreated by Russian security forces. As a result the wife had suffered a miscarriage. The husband and his brother had again been arrested in April 2001 and detained in a "filtration camp" where they had been mistreated. They had managed to escape by bribing security officials.

Their asylum application was rejected in June 2002. Upon appeal, the Administrative Court obliged the authorities to grant refugee status in June 2004. A further appeal ("Berufung") by the authorities against this decision was rejected at the High Administrative Court of Hessen in April 2008 insofar as the granting of refugee status was concerned (decision of 9 April 2008, 3 UE 460.06.A).

The High Administrative Court ruled that life and freedom of the applicants had been at risk at the time of their flight because they belonged to the group of ”Caucasians originating from Chechnya“. Additionally, they had been persecuted before they left Chechnya for individual reasons. The measures undertaken by the authorities against them could not be justified as legitimate acts in the combat against terrorism. Since Art 4.4 of the Qualification Directive was applicable, a further examination of an internal protection alternative at the time of the flight was not relevant. At the time of the decision the applicants could not return to Chechnya or to other parts of the Russian Federation, since no convincing arguments could be put forward against the assumption that they were again at risk of persecution.

A further review to the Federal Administrative Court (Revision) was declared admissible by the High Administrative Court because of the fundamental significance of the case. The authorities argued that the issue of an internal protection alternative at the time of the flight was still relevant in spite of the entry into force of the Qualification Directive. Furthermore, the High Administrative Court was criticised for applying the standards of Art 4.4 of the Qualification Directive on the internal protection issue. According to the authorities this resulted in an undue confusion of different elements of the refugee recognition procedure.
 

Decision & reasoning:

The further appeal (Revision) by the authorities did not meet with success. The High Administrative Court had lawfully affirmed that the applicants are entitled to refugee protection.

Since the applicant had already been subject to persecution immediately before he left his country of origin, he benefited from the facilitated standard of proof of Art 4.4 of the Qualification Directive. Therefore, the findings of the High Administrative Court on "group persecution" of Caucasians originating from Chechnya are not relevant in this context. According to Art 4.4 of the Qualification Directive the fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. In contrast to the opinion held by the authorities, persecution which has already taken place cannot be negated anylonger because of a flight alternative in another part of the country of origin at the time of the flight (Cf. Federal Administrative Court, 19 January 2009, 10 C 52.07, par. 29). In other words: In the course of the refugee recognition examination the facilitated standard of proof is applicable even if the situation at the time of the flight was not hopeless in the whole of the country.

The High Administrative Court had based its findings on the assumption that the applicant did not have access to an internal protection alternative in other regions of the Russian Federation. Since he had been registered as a terrorist suspect and thus belonged to a group which was facing a particular risk, renewed persecution could not be ruled out with the certainty that is required under Art 4.4 of the Qualification Directive. This had to be assumed both for Chechnya as well as for other regions of the Russian Federation. This part of the High Administrative Court's decision was also accepted by the Federal Administrative Court.

Whether the issue of internal protection had to be examined at all in the present case could be left open, as the High Administrative Court had found that the applicant was at risk of countrywide persecution by the state. The High Administrative Court had negated the first requirement of Art 8.1 of the Qualification Directive, according to which the lack of a well-founded fear of persecution in another part of the country of origin must not be in place. In the course of this finding it had applied the facilitated standard of proof of Art 4.4 of the Qualification Directive to the applicant’s benefit. The authorities argued that this approach unduly confused the elements of the refugee recognition. This objection was not justified.

The wording of Art. 4.4 and Art 8.1 of the Qualification Directive does not support a different handling of the standards, as both provisions use the term "well-founded fear of persecution". If persecution has already taken place the standard for this prognosis (of whether a well-founded fear exists) remains the same, since the facilitated standard of proof of Art 4.4 of the Qualification Directive is obviously designed to favour those persons who have already been subject to persecution in their country of origin, either by suffering it themselves or by being directly threatened by such persecution. Taking into account the purpose of the facilitated standard of proof it does not seem comprehensible to impose a more restrictive standard on the examination of internal protection, which is an expression of the subsidiary nature of refugee protection, than one would impose on the prognosis on future persecution, which systematically takes place prior to the examination of internal protection. The teleology behind the facilitated standard of proof – i.e. the humanitarian nature of asylum – prohibits the burdening of an asylum-seeker who has already suffered persecution with the risk of a repetition of such persecution.

Outcome:

The further appeal ("Revision") by the authorities was rejected; the applicants are entitled to refugee status.