Germany - High Administrative Court North Rhine-Westphalia, 29 October 2010, 9 A 3642/06.A

Facts:

The applicants are Iraqi nationals of Kurdish ethnicity. They are wife and children of a Kurdish man who had been granted refugee status in 1996. Following their asylum application in December 2000 the applicants were granted refugee status in January 2001. The “Federal Commissioner for Asylum Matters” (the now defunct “Bundesbeauftragter für Asylangelegenheiten”) appealed this decision. This appeal finally led to an annulment of the authorities' decision by the High Administrative Court in November 2003. Accordingly, the German authorities cancelled their decision to grant refugee status and, in addition, found that no “impediments to deportation” applied. The applicants appealed.

The Administrative Court of Cologne granted this appeal and found that the applicants were entitled to refugee status because they were family members of a refugee (Section 26 Asylum Procedure Act). The German authorities asked the High Administrative Court to annul this decision on the grounds that the Administrative Court did not have the competence to decide on the issue of refugee status in this procedure, in which only a decision on the “impediments of deportation” had been asked for.

Decision & reasoning:

The “facilitated standard of proof” of article 4 (4) of the Qualification Directive cannot be applied in the present case. Even if it is assumed that an incident during which the applicants were threatened at gunpoint in December 2000, took place as reported by the applicants, there is no internal connection between this threat of past persecution and a possible future threat of serious harm. The overall situation had seriously changed following the downfall of Saddam Hussein's regime. In any case, there was no connection between the reported past persecution and the possible threat in a situation of internal armed conflict according to Section 60 (7) Sentence 2 Residence Act (Art. 15 (c) Qualification Directive).

As the facilitated standard of proof did not apply, the risk of serious harm had to be measured against the common standard of proof. Within the common standard of proof the applicants did not face a considerable probability of harm within the meaning of Section 60 (7) of the Sentence 2 Residence Act (Art. 15 (c) of the Qualification Directive). In Iraq a multitude of civilians were affected by risks which emanate from the strained security situation. Accordingly, this risk was a general one which affected the whole of the population in Iraq, with the exception of the Kurdish Autonomous Region. However, for subsidiary protection (under Art. 15 (c) of the Qualification Directive) to be granted, the requirement of a serious and individual threat had to be met. This was only the case if general risks cumulate in such a manner that all inhabitants of a region are seriously and personally affected, or if someone is particularly affected because of individual circumstances increasing the risk. Such individual, risk-enhancing circumstances can also result from someone's membership to a group. Nevertheless, the density of danger (“Gefahrendichte”) had to be of a kind that any returning Iraqi citizen seriously had to fear becoming a victim of a targeted or random terrorist attack or of combat activities.    

Against this background the suicide attacks and bombings typical of Iraq and also of the hometown of the applicants could be classified as acts of indiscriminate violence. However, a density of danger as it is necessary for the assumption of a serious and individual risk could not be established. Nor did the applicants possess individual circumstances which resulted in an increased risk for them when compared to other members of the civilian population.

Indeed, it had to be concluded from the Foreign Office's country report of 11 April 2010 and from other sources that the security situation in Iraq is still disastrous. The situation in Tamim province with its capital, Kirkuk, is particularly precarious. Nevertheless, it could not be assumed that the density of danger in Kirkuk is of a kind which leads to serious and individual risk in practice for any civilian simply because of his or her presence in the region. This could be shown by comparing the scale of attacks with the overall number of people affected by these attacks. According to the data compiled by the British NGO Iraq Body Count, 99 attacks took place in Tamim province in 2009, in which 288 civilians were killed. Assuming that the population of Tamim province stands at 900.000, this means that 31.9 people were killed per 100.000 inhabitants. This meant that the statistical probability of being killed in an attack in Tamim is 1 in 3.100. Tamim therefore is the most dangerous province in Iraq. In addition, it had to be taken into account that a considerable number of civilians were seriously injured in attacks. It could be assumed that for every person killed in an attack, about five others were injured. All in all, it could be concluded that the statistical probability of suffering harm to life and limb in the course of combat operations in Tamim province was at 1 in 520 in the year 2009.

So even if one presumes that an internal armed conflict is taking place in Tamim province, it could not be assumed that the indiscriminate violence which is characteristic of this conflict had reached such a high level that any person was at risk of a serious and individual threat simply by his or her presence in the region. Furthermore, being of Kurdish ethnicity, the applicants would not belong to an ethnic minority in Tamim province upon return, nor did they belong to another group with risk-enhancing characteristics.

Outcome:

The Decision of the Administrative Court Cologne was annulled as the applicants are neither entitled to refugee status nor was protection from deportation to be granted.

Subsequent proceedings:

None (the High Administrative Court did not grant a further review/”Revision” by the Federal Administrative Court).