Germany - Administrative Court of Göttingen, 19 November 2010, 1 B 280/10

Country of Decision:
Country of Applicant:
Date of Decision:
19-11-2010
Citation:
1 B 280/10
Additional Citation:
asyl.net/M17922
Court Name:
Administrative Court of Göttingen
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Headnote: 

The exclusion ground “serious non-political crime” does not automatically apply to a supporter of the PKK. In contrast, an examination of the individual responsibility has to be carried out in each case.

Facts: 

The applicant is of Kurdish ethnicity. He applied for asylum in Germany in June 2009 and stated that he had been persecuted because of his activities for the PKK. The authorities rejected his application as “manifestly unfounded” applying the exclusion ground of a serious non-political crime (Art. 12.2 (b) of the Qualification Directive) because of the applicant's support for the PKK.

Decision & Reasoning: 

The Administrative Court ruled that the appeal against the authorities' decision shall have suspensive effect, since serious doubts persist as to the lawfulness of the deportation order (which was based on the rejection of the asylum application as “manifestly unfounded”). The court stated:

It is not disputed that the applicant has been supporting the PKK for several years and that the PKK has been listed in the Annex to the Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP).

However, the Court of Justice of the European Union has put forward an interpretation of Art 12.2 (b) and (c) of the Qualification Directive, according to which the fact that a person belongs to, and has supported the armed struggle of an organisation which has been classified as “terrorist” by the EU, does not automatically constitute a serious reason to assume that one of these exclusion grounds is applicable in the case of this person (referring to “serious non-political crime” or “acts contrary to the purposes and principles of the United Nations” respectively, decision of 9 November 2010, C-57/09 and C-101/09). It has to be decided in each case whether the person concerned can be attributed an individual responsibility. The authorities have failed to carry out such an individual assessment. 

Outcome: 

The appeal against the authorities' decision has suspensive effect (which is generally excluded in cases of rejections of applications as manifestly unfounded).

Observations/Comments: 

If an application has been rejected as "manifestly unfounded" the court first has to decide, in summary proceedings, whether the appeal has suspensive effect and (whether this is granted or denied) the court has to decide on the substance of the case thereafter, in the normal appeal procedure.

If suspensive effect is denied, the claimant is obliged to leave the country and it may transpire that the procedure will take place although the claimant has already left the country or has been deported.

This particular decision is the outcome of the summary proceeding, but the court made some fundamental observations on the application of exclusion clauses.

Appeal procedures often take several years. No information could be found (February 2012) indicating that the court has already come to a decision in the appeal procedure.