Germany – Administrative Court Magdeburg, 26 June 2017, 5 A61/17 MD

Country of Decision:
Country of Applicant:
Date of Decision:
26-06-2017
Citation:
5A61/17MD
Court Name:
Administrative Court Magdeburg (Judge Furthmann)
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 60 (5)
(7)
(8)
Germany - AufenthG (Residence Act) - § 11 (1)
Germany - AsylG (Asylum Law) - Article 3 (1)
(2)
(4)
Germany - AsylG (Asylum Law) - Article 77 (1)
Germany - AsylG (Asylum Law) - Article 3b
Germany - AsylG (Asylum Law) - Article 3a (1)
(3)
Germany - AsylG (Asylum Law) - Article 3c
Germany - AsylG (Asylum Law) - Article 83b
Germany - VwGO (Code of Administrative Court Procedure) § 113 (5)
Germany - VwGO (Code of Administrative Court Procedure) § 67 (2) Nr. 3 – 7
Germany - VwGO (Code of Administrative Court Procedure) § 67 (4)
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Headnote: 

1. Afghans who have worked for international aid organisations are particularly endangered of becoming victims of political persecution by non-state actors (e.g. Taliban) according to § 3 (1) AsylG in case of a return to Afghanistan.

2. There is no internal protection for these people. They cannot escape the clutches of non-state actors as these groups have a wide (information) network at their disposal and an increased interest in persons who have worked for international aid organisations.

Facts: 

The plaintiff, an Afghan citizen, belonging to the peoples of Tajiks and of Muslim faith, entered Germany on the 18th of June, 2015 and lodged an application for (political) asylum on the 3rd of August, 2015. During his interview he stated that he has worked for the UNHCR since 2002, being responsible for the transport of people. Several times he was spoken to by the Hezb-i-Islami group who asked him to cooperate with them, in particular giving out information concerning the transport of foreigners. Since he did not react to this request, he received several threating calls and letters, including murder threats addressed to him and his family. Also, someone shot at the car whilst the plaintiff and his family were driving back home from a friend’s house.

On the 26th of January, 2017 his asylum claim was rejected and he was requested to leave Germany.

The grounds for the rejection were:

- On leaving the country, the applicant was indeed (previously) persecuted and this constituted a valid reason to establish a fear of persecution in respect of § 3 (1) AsylG at the time of the interview. However, due to the fact that the Hezb-i-Islami group has signed a peace agreement, it can be assumed that there is no future threat of persecution by the Hezb-iIslami group.

- With regard to the applicant’s fear of future persecution by the Taliban, he could not prove a fear of an individual persecution, rather he is exposed - just as the entire Afghan population - to a general threating situation.

On the 3rd of February 2017, the applicant brought an action against this decision. In the oral hearing, the plaintiff presented further and new threatening letters he received from the “Mujaheddin” and the Taliban.

Decision & Reasoning: 

The action is successful. The plaintiff is entitled to refugee status according to § 3 (1) AsylG.

The consideration made by the Federal Office for Migration and Refugees (BAMF) on the previous persecution of the plaintiff that falls within the scope of § 3 (1) AsylG was correct. However, the Federal Office was wrong to conclude that there will be no future threat of persecution when returning to Afghanistan. On the contrary, with considerable probability the plaintiff is at risk of future acts of persecution by non-state actors, which also constitutes a “political” persecution in the sense of § 3 AsylG.

When examining the grounds of persecution, it is sufficient if these characteristics are only attributed to the asylum seeker by his or her persecutor (principle of “imputed political opinion”). People who have worked for international aid organisations belong to the target group of non-state and anti-government groups and, therefore, are particularly at risk of becoming a victim of assaults, such as kidnapping or killing. As has been proved, the Islamic Republic of Afghanistan is not capable of granting adequate protection against the persecution by non-state actors. Also, when considering the possibility of internal protection, the wide information network by the Taliban has to be taken into account. These findings by the court are underlined by various reports as well as by the strong interest of the Taliban to come in contact with the plaintiff due to his work for the UNCHR. Also, the court refers to a recorded increase in attacks by the Taliban on people who have worked for international aid organisations since 2015 and to the fact that his family continues to receive threatening letters, also by the Taliban, addressed to the plaintiff. As a result, the court claims that on returning to Afghanistan, the plaintiff will not be able to avoid potential attacks by the Taliban. 

Outcome: 

The action is fully successful. The plaintiff is to be granted refugee status according to § 3 (1) AslyG.

Observations/Comments: 

This case summary was written by Merle Bannach.

Other sources cited: 
- UNHCR-Guidelines for assessing the international protection needs of asylum – seekers from Afghanistan from April 19th, 2016:
- Report by the UNHCR from March 24th, 2011: http://www.refworld.org/cgibin/texis/vtx/rwmain?page=country&docid=4d7e1... her=UNHCR&coi=AFG&querysi=2011&searchin=year&sort=date
- Report by the Swiss Refugee Council: http://docplayer.org/33542604-
Afghanistan-update-die-aktuelle-sicherheitslage.html
- Report by the Swiss Refugee Council from August 2011:
- Report by ACCORD from January, 31st, 2012:
- Report by ACCORD from March 7th, 2013:
- Report by EASO: Afghanistan: Security Situation, from November 2016:
- Report by BBC from April 4th, 2010:
- Report by ANSO from August 17th, 2011
- Report by UN-Habitat from September 15th, 2016 and March 6th, 2006
- Report: „Afghanistan: Situation of Afghan citizens who work for NGOs or international aid organizations, and whether they are targeted by the Taliban; attacks against schools and incidents of violence against students, teachers, and the educational sector; stat response” by the Immigration and Refugee Board of Canada from February 22nd, 2016
- German Foreign Ministry, reports from November 6th, 2015 and October 19th, 2016
- Essay by Friederike Stahlmann: „Bedrohungen im sozialen Alltag Afghanistans
– Der fehlende Schutz bei Verfolgung und Gewalt durch private Akteure“, Asylmagazin 3 /2017, p. 82 ff.
- Hofmann, Ausländerrecht, 2. Aufl. 2016, § 3b AsylG Rn. 23
Case Law Cited: 

Germany - Administrative Court Munich, decision from 02 December 2014 – M 24 K 14.30759

Germany - High Administrative Court Baden-Württemberg (VGH), decision from 06 march 2012 – 11 S 3070/11

Germany - High Administrative Court Lüneburg (OVG), decision from 28 July 2014 – 9 LB 2/13

Germany - Federal Administrative Court (BVerwG), decision from 26 October 1989 – 9 B 405.89

Germany - BVerwG, judgement of 6th March 1990 - 9 C 14.89 -,BVerwGE 85, 12 Germany - OVG Rheinland- Pfalz, resolution of 15th September 2016 - 1 A10655/16.OVG

Germany - Federal Administrative Court, 31.01.2013 – 10 C 15.12