Germany - High Administrative Court Hessen, 25 August 2011, 8 A 1657/10.A
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | High Administrative Court Hessen |
| Date of decision: | 25-08-2011 |
| Citation: | 8 A 1657/10.A |
| Additional citation: | asyl.net/M19117 |
Keywords:
| Keywords |
|
Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
|
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. |
|
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. |
|
Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
|
Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
|
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. |
|
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. |
|
Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
The applicant was eligible for subsidiary protection as an internal armed conflict is taking place in Logar. The applicant, in case of return to Afghanistan, could not relocate to Kabul, since he could not secure his livelihood there. In order to secure his livelihood, he could not rely on property which his family had possessed in the province of Logar.
Facts:
The applicant originates from a town in the province Logar, south of Kabul. He is of Tajik ethnicity and Shiite religion. In 2002, he applied for asylum in Germany. He claimed that his membership in the youth organization of the former Communist Party (People’s Democratic Party of Afghanistan, PDPA) became known and the village elders had tried to detain him. Before that he had been imprisoned by the Taliban for two years.
The authorities rejected his application arguing that the risk of persecution by the Taliban had ceased to exist and that the applicant, being a non-leading member of the PDPA, would not be at risk of being subject to acts of persecution. In January 2007, the applicant filed a subsequent application, claiming that the situation in Kabul had deteriorated significantly. Furthermore, he did not have any family network in Afghanistan and there was still fighting against the Taliban in his home province.
The authorities and the Administrative Court rejected his subsequent application. However, in January 2010, the High Administrative Court found that there was an internal armed conflict in the province of Logar and therefore the applicant was eligible for subsidiary protection. The court held that there was no internal protection alternative for the applicant in Kabul, since he would not be able to safeguard his means of existence under conditions fit for a human being.
The Federal Administrative Court annulled the decision of the High Administrative Court in July 2010 (Federal Administrative Court, 14 July 2010, 10 B 7.10) and held that the investigations regarding the applicant’s assets in Afghanistan were not sufficient. The case was sent back to the High Administrative Court.
Decision & reasoning:
The High Administrative Court upheld its position according to which the applicant was eligible for subsidiary protection under Art. 15 (c) of the Qualification Directive.
At the time of its first decision (January 2010), the court found that an internal armed conflict took place in the applicant’s home region, the province of Logar, in the form of civil war-like clashes and guerilla fighting. In the court's opinion, based on expert opinions, on other sources of information collected for the proceedings and on publicly available news items, the situation has worsened to such an extent that the armed conflict has reached a high level of indiscriminate violence which involves a high “density of danger” for the civilian population. It can be established that virtually the whole population of the province of Logar is subject to “acts of arbitrary, indiscriminate violence” by the parties to the conflict. The court found:
In addition, the applicant is facing an even higher risk due to his Tajik ethnicity, his Shiite religion, his previous membership of the youth organization of the PDPA, which has become known in the meantime, and due to the fact that his family (formerly) owned real estate in his hometown. These circumstances have to be taken into consideration in the present context as they suggest that the applicant is not only affected more severely than others by the general indiscriminate violence (like, for example, physicians or journalists), but since they expose him additionally to the risk of target-oriented acts of violence (like, for example, membership of a religious or ethnic group). It is precisely such target-oriented assaults which can be expected to intensify in the province of Logar which, to a great extent, is dominated by insurgents.
The applicant cannot be referred to internal protection under Art. 8 of the Qualification Directive. The High Administrative Court upholds its position according to which the applicant is not in a position to secure his livelihood, even in Kabul. On the basis of the expert opinions obtained in the course of the present proceedings, the court is convinced that the applicant would not be in a position to utilize his real estate in Logar in order to secure his livelihood in Kabul.
Outcome:
The applicant was eligible for subsidiary protection.
Observations/comments:
In January 2010 the High Administrative Court of Hessen had already decided in this case that the applicant was eligible for subsidiary protection (25 January 2010, 8 A 303/09.A (asyl.net, M16618)). The Federal Administrative Court, however, annulled this judgment and remanded the case to the High Administrative Court (Federal Administrative Court, 14 July 2010, 10 B 7.10).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Administrative Court, 14 July 2009, 10 C 9.08 |
| Germany – Federal Administrative Court, 14 July 2010, 10 B 7.10 |
Follower Cases:
| Follower Cases |
| Germany - Administrative Court Baden-Württemberg, 6 March 2012, A 11 S 3070/11 |
Other sources:
Bank, NVwZ 2009 S. 695 <698 f., insbes. FN 29>
Tiedemann, ZAR 2011, Page 206 [212 f.]