Germany - High Administrative Court Baden-Wurttemberg, 1 December 2010, A 2 S 1898/10
Keywords:
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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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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. |
Headnote:
The group of “Iraqi citizens who cooperate with the coalition forces” in Iraq is not to be characterised as a “social group” within the meaning of the Qualification Directive (confirmation of decision of Administrative Court of Karlsruhe of the 16 April 2010, A 10 K 523/08). It cannot be assumed that any kind of cooperation with the coalition forces is an expression of a certain political conviction or that Islamist terrorist organisations would have an understanding of this kind of cooperation.
Facts:
The applicant is a woman from Mosul and of Kurdish ethnicity. She applied for asylum in Germany in November 2007 and claimed that terrorists had threatened to kill her because she had been working on a US army base in Iraq. Her brother was severely injured in an attack. The German authorities rejected the application in December 2007. The applicant appealed to the Administrative Court of Karlsruhe.
The Administrative Court found that she was not entitled to refugee status since the group of Iraqi citizens who cooperate with the occupying forces could not be characterised as a “social group” within the meaning of the Qualification Directive. Furthermore, the Administrative Court found that the applicant was entitled to subsidiary protection since there was an armed conflict in the Nineveh region and because the threats by terrorists experienced in the past constituted individual “risk-enhancing” circumstances.
The applicant applied for leave for a further appeal at the High Administrative Court insofar as the rejection of refugee status was concerned.
Decision & reasoning:
The application to grant a further appeal at the High Administrative Court was rejected. The Administrative Court's decision to deny refugee status did not meet with objections from the High Administrative Court which stated:
The Administrative Court held that in the applicant's case terrorist attacks on persons who cooperate with the coalition forces are to be classified as criminal acts. The applicant applied for a further appeal procedure to clarify the question of whether such attacks are connected to the persecution ground “political opinion”. This question cannot be answered generally as the answer depends on the respective circumstances of each individual case. Cooperation with the coalition forces can take place in highly different manners and the motivation for such cooperation are equally diverse. Therefore it is impossible to deduce from the fact that someone cooperates with the coalition forces that she/he has a certain political opinion.
For the same reasons the question of whether persons in Iraq who cooperate with the coalition forces have to be regarded as a social group, can be answered in the negative. The Administrative Court has correctly found that the characteristic of “cooperating with the occupying forces” is not appropriate to distinguish the members of this group in a way that they would be regarded as a clearly defined group.
Outcome:
The application to grant a further appeal at the High Administrative Court was rejected. The decision by the Administrative Court to deny refugee status was legally valid.
Subsequent proceedings:
None
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany - Federal Constitutional Court, 10 July 1989, 2 BvR 502/86 |