Germany - Administrative Court Köln, 12 October 2007, 18 K 6334/05.A

Country of Decision:
Country of Applicant:
Date of Decision:
12-10-2007
Citation:
18 K 6334/05.A
Additional Citation:
asyl.net/M11856
Court Name:
Administrative Court Köln
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 4
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 7
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 9
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 11
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 12
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 15
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 2 > Art 2 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 6
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 9
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10 > Art 10.1 (d)
UNHCR Handbook > Para 37
UNHCR Handbook > Para 38
UNHCR Handbook > Para 39
UNHCR Handbook > Para 40
UNHCR Handbook > Para 41
UNHCR Handbook > Para 42
UNHCR Handbook > Para 43
UNHCR Handbook > Para 44
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Headnote: 

Currently every Sunnite and Shiite from Central and South Iraq is to be considered as a refugee within the meaning of Section 60 (1) Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations.

Returnees who originate from regions of mixed denominations cannot obtain internal protection in any part of Iraq.

Facts: 

The applicant is Iraqi citizen of Arab ethnicity and is Shiite. He entered Germany, together with his mother, in March 2003 and applied for asylum. The application was rejected in a decision of the 17 January 2005. The applicant appealed this decision, arguing that he and his mother were threatened by his father’s family in Iraq. The family has a close relationship with influential persons and holds him and his mother responsible for the fact that they were subjected to repression from the Hussein regime.

Decision & Reasoning: 

The applicant was recognised as a refugee. The court stated:

The differentiation between the considerable probability and the so called facilitated standard of proof, common in German case law, correlates in principle with the provision of Art. 4.4 Qualification Directive, which stipulates that the fact that an applicant has already been subject to persecution or serious harm or to direct threat of such persecution or such harm is a serious indication of the well-founded fear of persecution. There is some indications that the standards of proof, developed in German case law, have a tendency of focusing too strongly on an objective assessment, so that now the focus  should be more on the subjective element of fear of persecution.

According to these criteria, the requirements under Section 60 (1) of the Residence Act are met, so that the applicant must be recognised as a refugee.

Within Iraq, as the violence constantly increases, denomination-based violence between Sunnites and Shiites has become a particular pattern of persecution, and claims the highest number of lives of the Iraqi population. Systematic expulsions on a large scale are currently taking place in Central- and South-Iraq, which have the character of denomination-based ethnic cleansing.

Areas with mixed denominational population, within Iraq as a whole are affected by denominationally motivated ethnic cleansing, including all big cities like Baghdad, Mosul, Kerkuk, Basra, but also provinces like Aslah-Al-Din, Diyala and Babil.

In principle, even the separation of the different denominations did not improve the security situation. Both Sunnite and Shiite groups are equally responsible for extensive human rights violations against members of the other side.

The court is convinced that currently every Sunnite and every Shiite from Central- and South-Iraq is a refugee within the meaning of Section 60 (1) of the Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations, in particular Baghdad. Returnees are generally even at a higher risk of persecution, even though there are no precise figures due to lack of significant returns.

If the requirement of previous case law1 regarding internal protection, even under consideration of Art. 8 of the Qualification Directive, can be established without restriction or if now more than just the mere securing of livelihood is required, it is not relevant to this decision, because, even under the previous requirements, the applicant cannot obtain internal protection in the Kurdish regions of North Iraq or in other regions of Central- or South-Iraq. 

Central- and South-Iraq as a whole, owing to the overall disastrous security situation and the ubiquitous risk of again becoming a victim to ethnic cleansing, are not suitable places of internal protection. Apart from that, one cannot readily assume that Sunnite and Shiite refugees, who originate from areas with a mixed denominational population, can settle in denominational homogenous areas. The local authorities of the different provinces have closed their borders for all internally displaced persons or restricted their settlement referring to the burden on infrastructure.

Even in the Kurdish areas of North-Iraq, the settlement of Non-Kurds from Central- and South-Iraq has been hindered by the fact that without a character-witness, who must be known to the local authorities and who has to personally vouch for that person, an official registration cannot be obtained. Therefore, they can receive neither social assistance nor food aid. Combined with the rents, that have increased significantly since the end of war and generally exceed the average income by far, relocation is actually impossible, unless contacts to relatives exist, who are willing and able to accommodate a family member.

Outcome: 

The asylum authorities were obliged to grant refugee status to the applicant.

Subsequent Proceedings : 

Not known.

Observations/Comments: 

1. In this context, internal protection under the previous case law of the Constitutional Court and the High Administrative Court required that the applicant must be able to secure his/her livelihood in that region. Generally, the applicant must not be exposed to disadvantages and risks that are similar to interferences with rights protected under refugee law, if these disadvantages and risks do not exist at the place of origin (see the landmark decision of the Federal Constitutional Court of 10 July 1989).