Germany - High Administrative Court Baden-Württemberg, 25 October 2006, A 3 S 46/06
| Country of Decision: | Germany |
| Country of applicant: | Russia Russia (Chechnya) , |
| Court name: | High Administrative Court Baden-Württemberg |
| Date of decision: | 25-10-2006 |
| Citation: | A 3 S 46/06 |
| Additional citation: | asyl.net/M9350 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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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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Previous persecution
Description
"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.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
Headnote:
Members of a family, who are Russian citizens of Chechen ethnicity, who originate from Chechnya, can avail of internal protection (in the context of persecution by non-state actors, Section 60 (1) sentence (4) (c) of the Residence Act in conjunction with Art 8 of the Qualification Directive) in areas outside Chechnya, if one family member (in this instance the wife) possesses a new Russian internal passport, which is an important requirement for registration.
Facts:
The applicants, a married couple and a child, are Russian citizens of Chechen ethnicity. Until their departure, they had lived in Chechnya. In January 2004 they came to Germany and applied for refugee status. The first named applicant, the wife, presented a Russian internal passport, issued in May 2003. The second named applicant, the husband, did not have such a document. By decision of 18 May 2005, the authorities rejected their application. By judgment of 5 October 2005, the Administrative Court of Karlsruhe annulled that decision and ordered the authorities to grant refugee status. The court held that the applicants were not persecuted individually prior to their departure; however, the conduct by the Russian side, during and after the Second Chechen War, as well as the violence of the Russian soldiers stationed in Chechnya and of the pro-Russian security forces against Chechen civilians, have to be considered as group-persecution.
The court found that internal protection was not available in any other part of the Russian Federation, since they would not be registered there and therefore would end up in a hopeless situation in case of return.
The authorities challenged this decision to the High Administrative Court of Baden-Württemberg.
Decision & reasoning:
The court held that an applicant who has already been subject to persecution benefits from a facilitated standard of proof under national legislation as well as under the Qualification Directive.
The Court, in favour of the applicants, assumed that the applicants had been subject to such persecution in the form of regional group persecution before they left Chechnya.
However, the court concluded that they are not eligible for refugee protection, since they could live safely in other parts of Russia. The court found:
According to Art 8.2 of the Qualification Directive, the general circumstances prevailing in that part of the country have to be considered, as well as the personal circumstances of the applicant. In order to define the term ‘personal circumstances’, Art 4.3 (c) of the Qualification Directive assists, which requires the assessment of the applicant’s individual position and personal circumstances, including factors such as background, gender and age.
Next, it has to be established if the applicant can reasonably be expected to take up residence in a different part of his country of origin. This requires that he can at least make his living at the place of refuge, if he makes reasonable efforts. These explanations correspond with consistent case law. According to the Federal Administrative Court, persons who are able to work, can make their living at a place of refuge, at least after overcoming initial problems, if they can achieve what they need for survival by their own income, even if the work is less attractive and falls short of their education, or by support from other people. Suitable employment includes activities for which there is no demand in the general labour market, that do not correspond to traditional job descriptions, since for example they do not require special skills, and that are practices only temporarily, for example in order to cover short-term needs.However, making a living by engaging in degrading or criminal activities is not reasonable. Furthermore, in such circumstances it is not clear that the applicant would be furnished with permanent legal residence.
Based on these principles, the applicants can be reasonably expected to take up residence in another part of the Russian Federation, where they are protected against persecution and can secure a decent minimum standard of living.
The court is convinced that the second named applicant, who possesses a new valid Russian internal passport, will be able to find accommodation for herself and her family in Chechen settlements and, by this, fulfill the legal requirements for registration.
Despite all the difficulties members of the Chechen ethnic group face when applying for registration, they may be registered, though in many cases only after intervention of NGOs, members of Parliament or other influential persons or by means of corruption. In her efforts in this regard, the second named applicant can rely on her husband’s support. Even though he does not possess a valid internal passport and, therefore, does not fulfill the requirements for registration, he will successfully obtain accommodation in the male dominated Chechen diaspora and find for himself employment at least in the so-called “shadow economy”, which will enable him to secure a decent standard of living for himself and his family. It is immaterial in the present case, if he will get his own registration, which is rather improbable without a valid internal passport, and if it would be reasonable for him to return to Chechnya first, in order to obtain a new internal passport.
Outcome:
The decision of the Administrative Court of Karlsruhe was amended and the case was dismissed.
Subsequent proceedings:
Not known.
Observations/comments:
The High Administrative Court Sachsen-Anhalt (31 March 2006, 2 L 40/06) held that only a legal residence is reasonable.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-148/78 Ratti |
| Germany - Federal Administrative Court, 17 May 2005, 1 B 100/05 |
| Germany - Federal Administrative Court, 31 August 2006, 1 B 96/06 |
| Germany - High Administrative Court Sachsen-Anhalt, 31 March 2006, 2 L 40/06 |