Germany - Adminstrative Court Trier, 23 March 2011, 5 K 1181/10.TR

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Headnote: 

A mother of two children was recognised as a refugee as there was sufficient probability of her being forced to undergo sterilisation in China due to violation of the one child policy. Forced sterilisation constitutes a violation of the basic human right to physical integrity and human dignity to such an extent that it is without doubt relevant under Section 60 (1) of the Residence Act. / Art 1 A 2 of the 1951 Refugee Convention.

Facts: 

The applicant, 43 years old, is a Chinese citizen. She came to Germany in May 1996 and applied for asylum under German law and for refugee status. She stated that she had suffered persecution as she had a second child. The application was rejected.

In Germany, the applicant gave birth to two more children, who were, at the time of the decision, 12 and 13 years old. On the 23 October 2009 she filed a subsequent application for asylum. In support of her application she alleged that, in case of return to China, she would be at risk of measures as part of China’s family planning policy, because she had given birth to two more children in Germany. By decision of 27 September 2010, the authorities rejected her application. The applicant appealed this decision. During the court procedure, she stated in detail that due to the one-child policy in China she would be at risk of forced sterilisation and political persecution.

Decision & Reasoning: 

The applicant was eligible for refugee status under Section 60 (1) of the Residence Act. The court stated:

It is without doubt that a forced sterilisation, enforced by the authorities, constitutes gender-based persecution according to Section 60 (1) sentences (1) and (3) of the Residence Act, connecting this act of persecution to their membership of the particular social group of women, since the forced sterilisation of a human being constitutes a violation of the basic human right to physical integrity and human dignity to such an extent that it is without doubt relevant under Section 60 (1) of the Residence Act.

The court is convinced that there is sufficient probability that the applicant, in case of return to her country of origin, is at risk of being sterilised against her will by local authorities in her home province. This danger is not only proven by the applicant’s statement in this lawsuit, but also by the Foreign Office, which also confirm that time and again, enforcement and control of the State’s family planning policy involves severe human rights violations including forced sterilisation and coercive late term abortions. In rural areas, according to the Foreign Office, there are time and again assaults by gangs of local thugs, hired by local authorities, whose assaults comply with the aims of the government policy. In these cases, protection of the persons concerned against abuse of state power can hardly be achieved. This concerns for example the enforcement of the family planning policy, the one-child-family. The reports by the Foreign Office do not indicate that subordinate authorities are willing to decisively combat forced sterilisations, in such cases forced sterilisations are considered as mere infringements on the part of local authorities. In summary, the court is of the opinion that it is sufficiently probable that the applicant, like other mothers with several children, would be at risk of being subjected to forced sterilisation. As explained above, this constitutes an act of persecution according to Section 60 (1) sentence 1 of the Residence Act by state or non-state actors of persecution.

Outcome: 

The authorities were ordered to grant the applicant refugee status.

Observations/Comments: 

An English translation of Section 60 (1) of the Residence Act is available on the website of the German Federal Ministry of Justice

Residence Act (Aufenthaltsgesetz):
http://www.gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html#p0718