Germany – Administrative Court Hannover, 08/15/2014, 6 A 9853/14

Country of Decision:
Country of Applicant:
Date of Decision:
15-08-2014
Citation:
6 A 9853/14
Court Name:
Hannover Administrative Court
National / Other Legislative Provisions:
§ 60 Abs 1
Abs. 5 und Abs. 7 AufenthG
Law on processing of asylum applications (Asylverfahrensgesetz – AsylVfG): § 3e AsylVfG
§ 3 Abs 1 AsylVfG
§ 4 AsylVfG
§28 Abs. 1a AsylVfG
§ 30 Abs. 2 Satz 1 AsylVfG
§ 77 Abs. 1 AsylVfG
German Constitution (Grundgesetz – GG): Art 16a GG
Administrary court code (Verwaltungsgerichtsordnung – VwGO) § 101 Abs. 2 VwGO
§113 Abs. 1 Satz 1 VwGO
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Headnote: 

In light of a deterioration of safety conditions in Iraq since June 10th 2014 members of the Yazidi religious group living in the province of Ninive (Mosul) are in danger of persecution solely on the basis of their religious beliefs, from which they can’t reasonably seek effective protection from the Iraqi state nor from any other organization, which could offer protection. Furthermore they can’t now, nor will they for the foreseeable future be able to evade persecution by seeking refuge in safe havens within country boarders.

Facts: 

The plaintiff is an Iraqi citizen of Kurdish descent and member of the Yazidi religious group. He was born in 1996 in Serejka (district of Tel Kef, Ninive).

The plaintiff left Iraq in November 2012 with his Mother and his brothers and sisters. After being separated from them on the course of their flight, he finally reached Germany on the land route as an unaccompanied minor.

On February 5th 2013 the plaintiff applied for asylum. In the subsequent interview conducted by the national office for migration and refugees (BAMF) the plaintiff stated that his father had been attacked and heavily injured at work nine years ago and subsequently died. In the following years he and his family where ousted from their lands from members of Arab ethnic groups.

The BAMF rejected the plaintiffs application on June 5th 2014 stating that it was unsubstantiated. It based its decision on current information about the state of Yazidi people in Iraq and furthermore stated that neither refugee status nor subsidiary protection needs were established. There were no legal obstacles standing in the way of deportation and the BAMF announced his pending deportation back to Iraq or another state.

The plaintiff appealed against the BAMF decision on may 24th 2013 and asked the court to reverse that decision and grant him refugee status.

Decision & Reasoning: 

The Court found the plaintiffs complaint to be merited and ordered the BAMF to grant him the refugee status.

It found that the BAMF’s decision was illegal. It violated the plaintiffs rights and was therefore to be reversed as well as the pending deportation back to Iraq to be cancelled.

Taking into account the high number of people who have already been displaced by the invasion of the terror organisation ISIS into the mainly Yazidi Province Mosul in June 10th 2014 and the subsequent armed conflict – estimations state a number of about 500.000 and go as high as 1 million displaced people –, leaving the people in this region without protection against aggressive persecution by the terrorists, the complaint appears to be well founded. This rapid deterioration of safety conditions in those north-Iraqi regions has been the subject of intense media coverage and is therefore well documented, leaving the court with no doubt that members of the Yazidi religious community in the province of Ninive (Mosul) are being persecuted solely because of their religious affiliation, facing threats to life and physical condition, as well as displacement or enslavement, originating from a non-governmental actor from which they can neither seek protection from the state or any other entity, nor, for the time being, find refuge in other regions within country boarders.

The Iraqi national army has completely abandoned the regions currently occupied by ISIS and limits itself mainly to the protection of Arabic regions in central Iraq north of Bagdad. No other help is currently available.

The court is convinced that not only the lack of flight routes for the Yazidi to possible safe havens like the neighbouring autonomous Kurdish regions Dohuk, Erbil and Sulaimaniya, but also the unlikeliness of effective protection they would receive in this regions and the sheer number of displaced people that surpasses by far the limited intake capacity of the Kurdish regions negates the possibility to flee from prosecution within the country. The latter is even more so,  if the fleeing person has no personal or financial ties to this regions, so that they can sustain an irrefutable minimum of existence there.

According to the plaintiffs own statement he doesn’t have any such ties neither familial nor financial to this regions. More importantly the plaintiff was separated from his only family during the flight and is now alone.

Asserting that the plaintiff has a legal claim to refugee status the court found that the demand for subsidiary protection was of inferior importance and therefore needn’t to be discussed. The BAMF’s statement from June 5th 2014, as well as the pending deportation was found to be illegal. 

Outcome: 

Complaint granted.

Observations/Comments: 

Written by Lusalla Nzanza, student assistant at the Refugee Law Clinic Cologne

Inconsistencies with regard to dates were taken from the underlying court decision.

Other sources cited: 

Domestic Case Law Cited

BVerwG, ruling from 20.03.2007 - 1 C 21.06 -, BVerwGE 128, 199 ff. = NVwZ 2007 S. 1089 ff

BVerwG Urteil vom 11.06.2011 - 10 C 25/10 -, BVerwGE 140, 22 ff. = NVwZ 2011 S. 1463 ff

OVG Nordrhein-Westfalen, Urt. vom 22.01.2014 - 9 A 2561/10.A - zur bisherigen Situation der Yeziden

Bay. VGH, Urt. vom 09.10. - 15 B 99.32230 -, juris, m. w. N.

 

Other Sources

Asylmagazin 2014, 296-298 (red. Leitsatz und Gründe)

Deutsche Welle, www.dw.de vom 11.08.2014 „IS-Milizen im Irak von US- Luftschlägen nicht gestoppt“

Deutsche Welle www.dw.de vom 14.08.2014 „UN rufen höchste Notstandsstufe für Irak aus“

Frankfurter Neue Presse, www.fnp.de vom 08.08.2014 „Chronologie: IS-Terror im Namen des Glaubens“

medico international, www.medico.de vom 08.08.2014 „Massaker an Yeziden im Irak“

medico international, www.medico.de vom 12.08.2014 „Flüchtlinge im Irak in höchster Gefahr“

medico international, www.medico.de vom 12.08.2014 „Nordirak: Helfen Sie den Flüchtlingen“

Savelsberg und Hamo, EZKS, Gutachten vom 17.02.2010 für das VG München

Savelsberg und Hamo, EZKS, Gutachten vom 20.11.2011 für das VG Düsseldorf

Savelsberg und Hamo, EZKS, Gutachten vom 16.09.2013 für das OVG Münster

Spiegel online vom 05.08.2014 „Teuflische Taktik gegen religiöse Minderheiten“

Spiegel online vom 14.08.2014 „Uno-Schätzung: Rund 1000 Jesiden harren noch im Gebirge aus“

Süddeutsche.de vom 07.08.2014 „Kriegserfahrene Ex-Partisanen zwischen allen Fronten“

Süddeutsche.de vom 10.08.2014 „Steinmeier lobt US-Angriffe auf IS-Terrormiliz“

Süddeutsche.de vom 14.08.2014 „Flüchtlinge im Nordirak Bundeswehr-Hilfsflüge starten am Freitag“

tagesschau.de vom 08.08.2014 „Kämpfe im Nordirak - Obama genehmigt Luftangriffe gegen IS“

tagesschau.de vom 10.08.2014 „Kurden erobern Gebiete zurück“