Germany - Administrative Court of Oldenburg, 13 April 2011, 3 A 2966/09

The Administrative Court found that the appeal has merit. The authorities were obliged to grant refugee status to the applicant.

The Administrative Court refers to the fact that, according to German law, persecution for membership of a particular social group can also take place if a person's life, physical integrity or freedom is solely threatened on account of the person's sex (Section 60 (1) (3) of the Residence Act). Following the oral hearing, the Administrative Court considers the applicant's statement to be credible. According to the evidence gathered in the proceedings, the applicant was at risk of a forced marriage arranged by her uncles in Algeria. On three different occasions she had escaped from forced marriage. Because of this she was now at risk of being killed by her uncles.

The Administrative Court found that the risk of a forced marriage is sufficient to justify refugee status since it renders impossible an individual and self-determined way of life and fundamentally places at risk the sexual identity as a woman. It is true that Section 60 (1) of the Residence Act only refers explicitly to life, physical integrity and freedom. However, the Administrative Court takes the view that the right to sexual self-determination and the protection from sexual violence have to be included in the definition of “freedom” and “physical integrity” respectively. 

That the right to sexual self-determination can be subsumed under the criterion of “freedom” is also supported by the Qualification Directive. Art. 9.2 of the Qualification Directive explicitly refers in paragraph a) to acts of physical or mental violence, including acts of sexual violence, and in paragraph f) to acts of a gender-specific nature.

The risk of persecution by her uncles also constitutes relevant persecution by non-state actors since the state, parties or organisations which control the state or a substantial part of the state's territory, are not able to protect her from persecution.

Whether the applicant had been in a position to find refuge in another part of Algeria at the time of her departure from the country is irrelevant. This is because (past) persecution which took place before the flight cannot be negated because of an protection alternative which existed at the time of the flight (cf. Federal Administrative Court, 24 November 2009, 10 C 24.08).

At present, especially when considering the personal circumstances of the applicant, (as in Art. 8.2 of the Qualification Directive) she cannot reasonably be expected to flee to other parts of the country, such as the big cities. It could be assumed that her family would not find her immediately if she went to a place other than her hometown. However, such a hiding place would not provide a durable solution. It is impossible to consider that the applicant could make a living on her own without support from her family. The applicant has not finished school and has no professional experience and therefore it would be almost impossible for her to find a source of income which might provide the means for her survival. There is no benefit system for the unemployed in Algeria. Usually, it is the family which provides for unemployed persons but this possibility is not available in the applicant's case.