Germany - Administrative Court Karlsruhe, 16 April 2010, A 10 K 523/08

Country of Decision:
Country of Applicant:
Date of Decision:
16-04-2010
Citation:
A 10 K 523/08
Additional Citation:
asyl.net/M17700
Court Name:
Administrative Court Karlsruhe
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

Threats from terrorists against a person who has worked for the international forces in Iraq do not justify the granting of refugee status. Iraqi citizens who have cooperated with the occupying forces do not form a “social group” within the meaning of the Qualification Directive. However, the applicant is entitled to subsidiary protection since there is an armed conflict in the Nineveh region and because the threats by terrorists experienced in the past constitute individual “risk-enhancing” circumstances.

Facts: 

The applicant is a woman from Mosul and of Kurdish ethnicity. She applied for asylum in Germany in November 2007 and claimed that terrorists had threatened to kill her because she had been working on a US army base in Iraq. Her brother was severely injured in an attack. The German authorities rejected the application in December 2007. The applicant appealed against this decision to the Administrative Court of Karlsruhe.

Decision & Reasoning: 

The Administrative Court decided that the applicant was not entitled to refugee status. The court held:

Iraqi citizens who cooperate with the occupying forces cannot be regarded as a “particular social group” within the meaning of Art. 10.1 (d) of the Qualification Directive. The term “particular social group” has to be defined broadly; it is open to be developed further to include the diverse and changing manifestations of groups in various societies. Therefore, it can be sufficient that members of a particular social group share a common characteristic and are regarded by their environment as a clearly defined group (cf. UNHCR Annotated Comments on the Qualification Directive). However, the characteristic of “cooperating with the occupying forces” is not one that would be regarded as characteristic of such a clearly defined group. The applicant herself has stated that she has been threatened by individual terrorists. She has not claimed that she had been generally ostracised by society because of her work for the occupying forces.

However, the applicant is entitled to subsidiary protection under Section 60 (7) (2) of the Residence Act/Art. 15 (c) of the Qualification Directive.

According to the standards as defined by the Federal Administrative Court, an armed conflict within the meaning of Art. 15 (c) of the Qualification Directive does not necessarily have to extend to the whole territory of a state. Neither does it necessarily have to reach the threshold which international humanitarian law has set for an armed conflict (Art. 1 No. 1 of the Second Additional Protocol to the Geneva Conventions), however, a situation of civil unrest, during which riots or sporadic acts of violence take place, is not sufficient. Conflicts which are in between those two situations, have to be marked by a certain degree of durability and intensity.

In the present case, the applicant could only take up residence in Nineveh province upon return to Iraq. This is where her family lives. As mother of an infant she cannot be expected to take up residence in another region where she does not have this family background. Therefore the situation in Nineveh province has to be taken into account in the course of the examination of whether the applicant is to be granted subsidiary protection.

The court proceeds from the assumption that an armed conflict within the meaning of the Qualification Directive existed in Niniveh province in 2007 and that the situation has not significantly improved since then. A high number of attacks take place in the province and the number of these incidents indicates that members of the terrorist organisation have a certain strength in terms of their numbers.

Against this background, and because the applicant and her family were subjected to threats and attacks in the past, it has also to be assumed that individual, “risk-enhancing” circumstances exist.

Outcome: 

The authorities were obliged to grant subsidiary protection. 

Subsequent Proceedings : 

Unknown

Other sources cited: 

UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (OJ L 304/12 of 30.9.2004)