Germany - High Administrative Court, 25 January 2010, 8 A 303/09.A

Facts:

The applicant applied for asylum in Germany in June 2002, stating that he had been a member of the youth organisation of the former Communist Party and had been persecuted for that reason in Afghanistan during the rule of the Mujahideen and the Taliban. His asylum application was rejected by the authorities in July 2003. His appeal to the Administrative Court was dismissed.

In January 2007 he submitted a subsequent asylum application, stating that the security situation had deteriorated and the situation in his home province Logar was characterised by an internal armed conflict in terms of Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive, since NATO-troops and the Taliban were fighting each other in that area.

The authorities rejected this application and declared that protection from deportation was not to be granted since the applicant did not face an individual risk to life and limb and the humanitarian and security situation in Kabul did not justify the assumption that he would face an extreme level of risk upon return. An appeal against this decision was dismissed by the administrative court in February 2008.

The High Administrative Court granted a further appeal since the decision of the Administrative Court deviates from the Federal Administrative Court's case law, e.g. concerning the issue whether a claim to subsidiary protection under Section 60 (7) (2) Residence Act / Art. 15 (c) of the Qualification Directive was justified if an armed conflict was taking place nationwide. Furthermore, the High Administrative Court held that the question of what constitutes an individual risk to life and limb of civilians in an armed conflict had to be clarified.

Decision & reasoning:

The applicant was entitled to subsidiary protection in terms of Section 60 (7) (2) Residence Act / Art. 15 (c) of the Qualification Directive. The prerequisite for which requires that members of the civilian population face a significant and individual threat to life and physical integrity in a situation of an armed conflict.

An internal armed conflict is characterised by durable and concerted military operations under responsible command, but not cases internal disturbances and tensions. Whether civil war-like or other conflicts, which fall between these two categories, may still be classified as armed conflicts depending on their degree of intensity and durability. However, a nationwide situation of conflict is not a necessary requirement for granting protection. This can be deduced from the fact that in case of internal armed conflicts an internal flight alternative outside the area of conflict can be taken into consideration.

The situation in the applicant’s home region, Logar, is particularly precarious, as it borders on the so-called "Pashtun belt"/Pakistan and belongs to the heartland of the Pashtuns, where the Taliban and Al Qaeda have strong support. The Taliban increasingly launch attacks and wage a severe war on governmental and NATO-troops. Furthermore, Logar borders on Kabul province, where the Taliban also have military bases, but prefer guerilla tactics (the applicant’s home village is situated at the main road to Kabul). The civilian population is also terrorised by the Taliban.

Considering this high degree of indiscriminate violence, civilians in the province Logar are facing a significant individual risk of life and physical integrity. The situation for the applicant is further exacerbated, since he belongs to the ethnic minority of Tajiks and to the religious minority of Shiites; furthermore, he was a member of the youth organisation of the Communist party (PDPA), and this fact has become known. Finally his family possesses real estate in Logar, which might expose him to covetousness of other people. He has no relatives who might be willing and able to protect him.

Kabul might be the only suitable place of internal protection. However, based on new evidence and jurisdiction, even young single men cannot make a living there, unless they have vocational education, property and, above all, social support by their family and friends. This does not apply to the applicant.

Outcome:

The applicant was granted subsidiary protection under Section 60 (7) (2) Residence Act / Art 15 (c) Qualification Directive.

The authorities appealed this decision on a point of law ("Revision"). Subsequently, the Federal Administrative Court annulled the decision and referred the case back to the High Administrative Court Hessen (Federal Administrative Court, 14 July 2010, 10 B 7.10, (asyl.net M 17315)).

Observations/comments:

Cf.Federal Administrative Court, 14 July 2010, 10 B 7.10 (asyl.net M17315) annulling this decision and referring the case back to the High Administrative Court.