Germany - Administrative Court Gießen, 11 July 2013, 5 K 1316/12.GI.A

Country of Decision:
Country of Applicant:
Date of Decision:
11-07-2013
Citation:
5 K 1316/12.GI.A
Court Name:
Administrative Court Gießen
National / Other Legislative Provisions:
ICCPR - Art 18.3
Germany - AufenthG (Residence Act) - § 60 Abs. 2
Germany - AufenthG (Residence Act) - § 60 Abs. 3
Germany - AufenthG (Residence Act) - § 60 Abs. 4
Germany - AufenthG (Residence Act) - § 60 Abs. 5
Germany - AufenthG (Residence Act) - § 60 Abs. 6
Germany - AufenthG (Residence Act) - § 25 Abs. 2
Germany - AsylvfG (Asylum Procedure Act) - § 3
Germany - AsylVfG (Asylum Procedure Act) - § 34
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Headnote: 

Ahmadis, for whom the practise and possibly also the promotion of their faith in public are elements which define their identity and as such are essential, are very likely to be at risk of political persecution in Pakistan. The “relationship consideration” demanded by the Federal Administrative Court, whereby the number of members of a particular group is compared with the number of actual threatening acts of persecution, seems virtually impossible in this case.

Facts: 

The Applicant is a Pakistani citizen and part of the Ahmadiyya religious community. She travelled to the Federal Republic in August 2011. She justified her asylum application on the grounds that her husband had died in 2007. She subsequently lived alone in Karachi. As a single Ahmadiyya woman who openly practised her faith in public, she faced continual problems in her neighbourhood. She had been threatened and railed against and had repeatedly had her water cut off. She was fragile and suffered from a number of illnesses.

Decision & Reasoning: 

In view of the situation of Ahmadis in Pakistan, the Applicant, as a known member of the Ahmadiyya religious community, is currently very likely to be exposed to the risk of a serious human rights’ violation according to Article 9 (1) of the Qualification Directive on the grounds of her faith. Acts which according to the jurisprudence of the Court of Justice of the European Union (CJEU) may constitute a serious violation of religious freedom on the basis of Article 9 (1) (a) of the Qualification Directive do not simply include a serious encroachment on the freedom to practice one’s faith in private put also the freedom to practice religion in a public context. An essential issue in the evaluation of a serious human rights’ violation is the fact that Ahmadis are prohibited from recognising themselves as Muslims and from expressing this in public (Article 2 (b) of the Qualification Directive). All subsequent prohibitions stem from this situation (Article 9 (2) (c) of the Qualification Directive). This prohibition and its subsequent implementation must inevitably affect the very way in which Ahmadis understand their own identity when all public activities, and in particular the promotion of their faith and peaceful evangelizing, are not permitted and are only possible subject to the threat of serious penalties or violations of life and physical integrity.   

Ahmadis who practice their faith in a manner which exposes them to persecution and who actively express their religious denomination in public are at real risk of persecution in Pakistan. It is important to take into account in this consideration that serious risks to life and personal integrity exist with a danger of years of imprisonment and torture or inhuman detention conditions and attacks or serious assaults on private individuals. A specific additional “relationship consideration” as demanded by the Federal Administrative Court, which is intended to render the risk of persecution more plausible, seems virtually impossible in this case however. The issue of the number of Ahmadis who continue to act in a manner which is visible to the public in spite of all bans, threatened or imposed penalties and attacks which present risks to life and the personal integrity of private individuals cannot be determined with sufficient precision. Whilst a relationship consideration is not possible on account of this fact, these restrictions on investigative possibilities should not be detrimental to individuals seeking and requiring protection. If plausible conclusions are drawn from other sources of information which are sufficiently reliable, the investigation should be concluded at this point on the basis of the principle under EU law of the “effet utile” in the interests of effective refugee protection which respects human rights.  

Furthermore, the enforced renunciation of the public expression of religious beliefs represents a serious human rights’ violation for the group of individuals concerned according to Article 9 (1) of the Qualification Directive, which in essence corresponds to significant persecution within the meaning of this provision. Even if the renunciation of all public religious activities as described above did not by itself constitute a relevant act of persecution, persecution would nevertheless be concluded on the basis of an evaluative overviewof this aspect with the above described multiple discrimination and restrictions which by themselves either do not establish asignificant probability of persecution in the specific case in question or do not present the required degree of severity. On account of this ultimately decisive overview, persecution is deemed to exist in the case of enforced renunciation of the public expression of religious beliefs according to Article 9 (1) (b) of the Qualification Directive (see also High Administrative Court of Baden-Württemberg, decision of 12.06.2013 - A 11 S 757/13 - ).

Ahmadis who have an inherent connection with their faith are not offered internal protection in Pakistan according to Article 8 of the Qualification Directive. There is no part of the country in which they are able to express their faith in a safe and reasonable manner. The legal framework governing interventions directly attributable to the Pakistani state is the same throughout the country.  

On the basis of the impressions obtained from questioning the Applicant in the oral proceedings and the results of the taking of evidence, it was concluded that the Applicant is a member of the Ahmadiyya religious community who is closely bound and strongly influenced by her faith. The Applicant, an elderly and sick lady, would have to refrain from all public expression of her faith in Pakistan in a manner deserving of refugee protection. 

Outcome: 

The Applicant was recognised as a refugee. 

Observations/Comments: 

The decision relates to the decisions of the Federal Administrative Court of 20.02 2013 (10 C 23.12) and the High Administrative Court of Baden-Württemberg of 12.06.2013 (A 11 S 757/13). With the entry into force of the Qualification Directive on 28.08.2007, the decades-long jurisprudence of the Federal Administrative Court in relation to persecution on religious grounds was amended in favour of the party concerned. The Federal Administrative Court had previously judged the seriousness of an infringing act on the basis of encroachment upon the core area of private religious activities or the broader area of public religious activities. This no longer applies in view of the provisions of Article 10 (1) (b) and in connection with the clarifying jurisprudence of the Court of Justice of the European Union (decision of 05.09.2012 C-71/11 and C-99/11). The Federal Administrative Court requested that the trial courts apply a “relationship consideration” in the above-mentioned decision whose aim is to render the persecution outcome more plausible. The relationship consideration, which is a ‘process of evaluative consideration’, should involve comparing the number of Ahmadis who are unlawfully practising their religion in public with the number of actual threatening acts of persecution. The High Administrative Court of Baden-Württemberg, to which the case was referred by the Federal Administrative Court in its decision of 12.06.2013, declared that the basic facts required for confirmation of this case could not be determined; this was supported by the Administrative Court of Gießen. It remains to be seen whether this decision will be upheld by the Federal Administrative Court.

Other sources cited: 

Foreign office, report on the asylum and displacement situation in Pakistan – progress report –18.05.2007

Foreign office, report on the asylum and displacement situation in Pakistan – progress report - 17.03.2010

Foreign office, report on the asylum and displacement situation in Pakistan – progress report - 01.07.2011

Foreign office, progress report Pakistan 02.11.2012

Foreign office, progress report Pakistan 02.12.2012

Hearing of expert witness G. before the People’s Court of Stuttgart 13.03.2013

Case Law Cited: 

Germany - Administrative Court Baden-Württemberg, 12 June 2013, A 11 S 757/13

Germany - High Administrative Court OVG NRW, 14 December 2010, 19 A 2999/06.A

Germany - Administrative Court Hesse, 15 March 1995, 10 EU 02/94

Germany - Federal Administrative Court, 20 February 2013, 10 C 21.12

Germany - Federal Administrative Court, 5 July 1994, 9 C 1.94