Germany - Federal Administrative Court, Decision 1 C 29/17, 19 April 2018
Keywords:
| Keywords |
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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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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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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. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
§ 104 para. 13 S. 1 of AufenthG (Residence Law) impedes the claim of a person with subsidiary protection for the assessment of a case of non-refoulment referring to the situation in the state of origin according to § 60 Abs. 5 AufenthG and Art. 3 ECHR in order to enable family reunion due to the lack of a defensible interest.
Facts:
The appellants, mother and child, are of Eritrean origin and part of the Tigrinya ethnic group. In September 2015, the appellant arrived to Germany and applied for asylum for herself and her child in February 2016. Her asylum claim was based on her illegal exit from Eritrea and the desertion from the national military service, as well as being the wife of an Eritrean deserter. The application for asylum was denied whereas a subsidiary protection was granted.
The appellant requested the recognition of refugee status and the assessment of her non-refoulement case referring to the situation in her country of origin. The claim was rejected by the administrative court.
The appellant filed an appeal to the Federal Administrative Court. She maintained that her refugee status should have been recognised and that an examination of non-refoulement should have been carried out.
Decision & reasoning:
The Federal Administrative Court found that the administrative court did not violate federal law but correctly ruled that the appellant is not persecuted due to a political opinion according to § 3 para. 1 AsylG and § 3b para. 1 No. 5 AsylG. The administrative court rightly granted subsidiary protection, as she will rather face punishment in the form of inhumane treatment because she and her husband deserted from national military service and exited the country illegally.
Moreover, she is not member of a particular social group according to § 3b Abs. 1 Nr. 4 AsylG. Being part of a family in which there is a deserter or a close person to a deserter is not sufficient to assume the existence of a particular social group because this group would have no common characteristic and would be considered rather inhomogeneous. Additionally, they are not perceived as different by the rest of the Eritrean society which is the second necessary precondition for this ground of persecution. Lastly, there is no risk of gender specific persecution due to female genital mutilation.
The court also noted that her son, as a minor, will not be granted the status of a refugee because of § 26 para. 2 AsylG that stipulates as a precondition for the child’s refugee status that the parents have already been granted that status.
The Federal Administrative Court finds that the administrative court rightly decided against the assessment of a case of non-refoulment referring to the situation in the state of origin and that it does not violate § 60 para. 5 AufenthG, Art. 3 ECHR and § 31 para. 3 AsylG, § 114 S. 1 VwGO and § 40 VwVfG. There is no defensible interest on the part of the appellant because even in case of a successful appeal, there would be no legal advantage.
In asylum law, the scope of protection is graded/differentiated according to the subject matter of the dispute. The granting of asylum and the refugee status has to be assessed equally whereas the grant of subsidiary protection is seen as a subsidiary request. Due to the high importance of Art. 3 ECHR, there is no hierarchical order between the case of non-refoulment and the status of subsidiary protection, although the ladder has to be examined with priority. Consequently, if an individual is already granted subsidiary protection status, an assessment of non-refoulement is not necessary.
Furthermore, there are no further legal benefits for the appellant. There could be a right to family reunification when granted a residence permit on the basis of non-refoulement (according to § 25 para. 3 S. 1 AufenthG and §§ 27 para. 1, 30 Abs. 1 Satz 1 No. 3 lit. e and § 29 para. 3 S 1 AufenthG) but it is questionable whether there can be a right to residence according to § 25 para. 3 S. 1 AufenthG, if the person already has a right to residence on the basis of subsidiary protection according to § 25 para. 2 S. 1.
In any case, such a right to family reunification would be precluded by § 114 para. 13 S. 1 AufenthG, which suspends the possibility for reunification for persons with subsidiary protection. First, the wording of § 114 para 13. S. 1 AufenthG does not differentiate between persons that were granted a residence permit according to § 25 para. 3 S. 1 additionally to a residence permit according to § 25 para. 2 S. 1 and persons that were only granted one according to § 25 para. 2 S. 1. Also, in a systemic interpretation, there is no evidence in the other paragraphs that imply that such a differentiation should be made. This corresponds with the purpose of the provision which shall protect the state from an overwhelming situation and it shall provide time and planning security for the municipalities. This purpose would be circumvented if a family reunification would be possible for people with subsidiary protection if they also have a right to residence according to a case of non-refoulement according to § 60 para. 5 AufenthG.
Outcome:
Appeal denied.
Observations/comments:
This summary was drafted by Michael Spath, student at the Law Department of the University of Cologne.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v X, Y and Z |
| CJEU - C-473/16, F., 25 January 2018 |
Other sources:
Domestic Case Law
BVerwG (Federal Administrative Court), 19 May 1987 - 9 C 184.86
BVerfG, ruling 10 July 1989 - 2 BvR 502/86, 2 BvR 1000/86, 2 BvR 961/86
BVerfG, Chamber’s order, 4 December 2012 - 2 BvR 2954/09
BVerwG (Federal Administrative Court), 19 August 1986 - 9 C 322.85
BVerwG (Federal Administrative Court), 6 December 1988 - 9 C 22.88
BVerwG (Federal Administrative Court), 25 June 1991 - 9 C 131.90
BVerwG (Federal Administrative Court), 24 October 1995 - 9 C 3.
BVerwG (Federal Administrative Court, 26 February 2009 - 10 C 50.07
BVerwG (Federal Administrative Court) ruling, 24 April 2017 - 1 B 22.17
BVerwG (Federal Administrative Court), ruling 2 November 1995 - 9 B 710.94
BVerwG (Federal Administrative Court), 27 April 1982 - 9 C 239.
BVerwG (Federal Administrative Court), 2 July 1985 - 9 C 35.84
BVerwG (Federal Administrative Court), 17 January 1989 - 9 C 44.87
BVerwG (Federal Administrative Court) ruling, 11 October 1963 - 7 B 95.63
BVerwG (Federal Administrative Court) ruling, 28 August 1987 - 4 N 3.86
BVerwG (Federal Administrative Court), 28 April 1998 - 9 C 1.97
BverwG (Federal Administrative Court), 17 June 2014 - 10 C 7.13
BVerwG (Federal Administrative Court), 24 June 2008 - 10 C 43.07
BverwG (Federal Administrative Court), 27 April 2010 - 10 C 5.09
BverwG (Federal Administrative Court), 24 June 2008 - 10 C 43.07
BVerwG (Federal Administrative court), 27 April 2010 - 10 C 4.
BVerwG (Federal Administrative Court), 31. January 2013 - 10 C 15.12
BVerwG (Federal Administrative Court), 13 June 2013 - 10 C 13.12