Case summaries

An Iraqi man, previously a member of the Ba'ath Party, was granted refugee status. There were not found to be any grounds for exclusion. The man's son was also granted refugee status, with reference to the principle of family unity.

1. The issue as to whether an asylum-seeker was already protected against political persecution in a third country is only relevant in terms of  the asylum application for recognition of refugee status in the context of the concept of the first country of asylum as defined in EU law in Article 29 of the Asylum Procedures Act (Articles 25 and 26 of the Asylum Procedures Directive).  

2. If the Federal Office has reached a decision on the asylum application in this case, the substantive question of the subsidiarity of refugee protection in the assessment of refugee status is no longer applicable.

Conclusions on exclusion from protection are to be supported by factual findings and cannot be presumed, especially with an applicant, who through the credibility assessment, is deemed to be untrustworthy by an administrative body. Belonging to the army under Saddam Hussein might, together with the Sunni religion of the applicant, be understood as a reason for well-founded fear of persecution because of membership of a particular social group.

This case concerned exclusion from refugee status on the basis of a war crime and a serious non-political crime.

A Chechen who was involved in the Second Chechen War - outside of the general combat action - in the killing and wounding of Russian soldiers and the kidnapping of a Russian officer to force the release of another Chechen is at risk of being exposed to torture or at least inhuman or degrading treatment or punishment in the Russian Federation. 

The applicant stated that he had been a member of the Taliban amongst other things. The Federal Asylum Agency (BAA) declared that the expulsion of the applicant to Afghanistan was permissible. The Asylum Court acted on the assumption of the existence of the ground for exclusion from asylum of ”Crimes against humanity“ and therefore granted neither asylum nor subsidiary protection, but revoked the expulsion to Afghanistan. The Constitutional Court allowed the appeal by the applicant against this decision as sufficient findings were not established in relation to the assumed crime against humanity.

Application for annulment of a decision by the Minister of Public Order.

This case concerned special protection status in accordance with the 1951 Refugee Convention andexclusion from protection of those who have committed a serious crime under “common law”. The crime committed by the applicant (attempted murder of the Indian Ambassador in Romania) does not fall within the concepts of “political”, “composite” or “related” crimes, even if it was carried out because of the offender's political opinions or principles, or with the intent of achieving such aims. The implementation of the exclusion clause is not precluded because of the fact that the party has already served the sentence which was imposed. The judgment regarding the applicant having committed a serious criminal offence was justified. The decision was opposed by a minority. Consideration was given to the severity of the persecution the applicant risked suffering should he return to India and non-refoulement was approved, his deportation was given suspensive effect, and he was given temporary leave to remain on humanitarian grounds.

The exclusion of a person who had belonged to a terrorist organisation depended on a personal examination to see whether there were genuine grounds to attribute to him a personal responsibility as organiser, author or accomplice to serious crimes under ordinary law or actions contrary to the purposes and principles of the United Nations.

The conclusion can be drawn on the basis of the B. and D. judgment that, based on the description of Hizb-e Wahdat in the official report as a violent organisation, a policy of presuming 'personal and knowing participation' on the part of aliens who have fulfilled specific roles within the organisation is consistent with Article 12(2) of the Qualification Directive.

As a result of six convictions owing to trivial offences against property, subsidiary protection was withdrawn from the Applicant, as he would represent a danger to the general public. The Constitutional Court revoked this decision as unconstitutional: the Asylum Court had not interpreted the corresponding national stipulation in accordance with the Directives as the crimes committed were not of the seriousness required in Art 17 Qualification Directive.

Exclusion from refugee protection on the grounds of "serious non-political crime" or of "acts against the purposes and principles of the United Nations", cannot solely be based on the fact that an applicant has been a supporter or a member of an organisation which has been classified as terrorist. There must be serious reasons to justify the assumption that the applicant was personally involved in the commission of such crimes.