Germany – Federal Administrative Court, 29 May 2008, 10 C 11.07

Country of Decision:
Country of Applicant:
Date of Decision:
29-05-2008
Citation:
10 C 11.07
Additional Citation:
asyl.net/M13875
Court Name:
Federal Administrative Court
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Headnote: 

The concept of internal protection only applies if the asylum-seeker is able to reach the relevant region in a reasonable manner. In the light of Art 8 of the Qualification Directive an asylum-seeker can only be reasonably expected to stay in another part of his country of origin if he does not face risks in this region. The general situation in the region of internal protection and the applicant’s personal circumstances has to be taken into account. It is irrelevant for the granting of refugee status whether such risks likewise exist in the region of origin.

Facts: 

The applicant is an ethnic Armenian from Azerbaijan. He entered Germany in 2001; his asylum application was rejected in January 2002. An appeal against this decision was rejected by the Administrative Court. In a decision of 15 September 2005 the High Administrative Court of Hessen rejected the applicant’s further appeal. According to the High Administrative Court, the question of whether the applicant was persecuted or at risk of persecution in Azerbaijan could be left open as he had an internal flight alternative in the region of Nagorno-Karabakh.

This was the subject of the further appeal/”Revision” to the Federal Administrative Court. The applicant argued that the High Administrative Court had not clarified whether he could reach Nagorno-Karabakh in a reasonable way, since he would have to travel to Armenia first and apply for refugee status or Armenian citizenship – which would be a precondition for a journey to Nagorno-Karabakh – or he would have to apply to the representation of Nagorno-Karabakh to be admitted to its territory. Furthermore, the applicant argued that the lower courts had failed to clarify whether he could safeguard his means of existence in Nagorno-Karabakh and during the waiting period in Armenia.

Decision & Reasoning: 

It was found that the High Administrative Court Hessen had failed to clarify sufficiently if Nagorno-Karabakh was actually, and in a reasonable manner, accessible for the applicant. Further the High Administrative Court only speculated as to whether the applicant could obtain the necessary documents for entering Armenia. The same applied to the possibility of a further journey to Nagorno-Karabakh. The Federal Administrative Court had already explained previously that an internal flight/internal protection alternative in a given country was ruled out if refugee status in a third country had to be obtained beforehand. Also regarding the question of whether the applicant could obtain permission for entry to Nagorno-Karabakh, the findings of the High Administrative Court were characterised by uncertainty.

According to the Qualification Directive, returnees can in general be reasonably expected to obtain a transit visa and to participate in other activities necessary for a further journey to the place of an internal flight alternative. Obtaining a transit visa is a prerequisite to accessibility. Accessibility in turn is a preliminary stage of stay according to Art 8.2 of the Qualification Directive. Therefore it was necessary to examine the reasonableness according to the criteria of Art 8.2 of the Qualification Directive. To consider the obligation to obtain a transit visa and similar actions as generally unreasonable would widely render obsolete the concept of internal protection, because for this purpose it is necessary in most cases to cross other countries, which often requires obtaining a transit visa and meeting further conditions. It had to be examined if these were simply formal obstacles which could be overcome.

However, in examining whether the applicant could reasonably be referred to an internal protection alternative, the High Administrative Court had only evaluated such risks that may result from persecution, but it had not taken into account the question of whether the applicant could safeguard his means of existence there. While this requirement is not mentioned explicitly in the text of Art 8 of the Qualification Directive, it is referred to in the explanatory memorandum to the German Law for the transposition of the Qualification Directive/ ”Richtlinienumsetzungsgesetzes” (BT-Ds. 16/5065, p. 185). According to this memorandum, an applicant can only be reasonably expected to stay in the part of his country of origin where he is considered not to have a well-founded fear of persecution, if his means of existence are secured there. In contrast to the former legal situation and to established case law, this also applies if the living conditions in the area of origin are as bad as they are in the region of internal protection. Therefore, as far as the subsistence level is concerned, an in-country comparison is no longer relevant, only the general situation in the region of internal protection and the applicant’s personal circumstances have to be taken into account.

It had not been clarified which conditions exactly have to be met regarding economic and social standards in the region of internal protection, apart from and above those which safeguard the mere subsistence level. However, it is likely that these conditions will have to be measured against the general situation in the region.

It was also not decided whether the applicant could be reasonably expected to apply for Armenian citizenship, according to Art 4.3 (e) of the Qualification Directive. Since Art 4.3 (e) had not been transposed into German legislation, it had to be examined if this applied only if the applicant already had the Armenian citizenship before (as is the case in Art 1 A (2) 1951 Convention), or if it also applied if Armenian citizenship could be obtained by mere registration.

Outcome: 

The case was referred back to the High Administrative Court Hessen in order to clarify the issues raised by the Federal Administrative Court.

Case Law Cited: 

Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06

Germany - High Administrative Court Hessen, 21 February 2008, 3 UE 191/07.A