Germany - Federal Administrative Court, 1 March 2012, 10 C 7.11

Country of Decision:
Country of Applicant:
Date of Decision:
01-03-2012
Citation:
BVerwG 10 C 7.11
Additional Citation:
asyl.net M19656
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany - Grundgezets (Basic Law) - Art 16a
Germany - Auslandergesetz - section 51(1)
Germany - AsylvfG (Asylum Procedure Act) - § 73
Germany - AsylvfG (Asylum Procedure Act) - § 3
Germany - AufenthG (Residence Act) - § 60 Abs. 1
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) - § 60 Abs. 7
Germany - VwGO (Code of Administrative Court Procedure) - Section 137(1)(1)
Germany - VwGO (Code of Administrative Court Procedure) - Section 144 (3)
Germany - VwGO (Code of Administrative Court Procedure) - Clause 1(2)
Germany - VwGO (Code of Administrative Court Procedure) - Clause 1(4)
Printer-friendly versionPrinter-friendly version
Headnote: 

1. Changes in the home country are only considered to be sufficiently significant and non-temporary if the refugee’s fear of persecution can no longer be regarded as well-founded.
2. Based on the jurisprudence of the European Court of Human Rights (ECtHR) which applies to the concept of “real risk” according to Article 3 ECHR (European Convention on Human Rights), a uniform standardof probability is applied to assessing the likelihood of persecution in the context of refugee protection; this corresponds to the standard of substantial probability. 

Facts: 

The claimant is a Togolese national. She came to Germany in 1998 and applied for asylum. The Administrative Court obliged the authorities to find that the Applicant fulfilled the requirements for the recognition of refugee status. The authorities complied with this obligation in June 2004.

At the beginning of 2008, the authorities initiated a  revocation on account of the political changes which had taken place in Togo in the meantime and revoked their recognition of refugee status in a ruling dated 28.2.2008. The claim presented against this decision was rejected. At the Claimant’s request, the High Administrative Court (OVG) of Mecklenburg-Vorpommern reviewed the Administrative Court’s decision and overturned the ruling of 28.2.2008. The OVG based its decision on the grounds that the requirements for revocation had not been fulfilled. It stated that the relevant circumstances in Togo had not altered to such an extent that a repeat of the previous persecution could be excluded with an adequate degree of certainty in the foreseeable future in the event of a return to the country.

The Respondent authority argued with the review (“Revision”) on the basis that the Court of Appeal had based its evaluation of the risk of persecution on an erroneous standard of probability.  

Decision & Reasoning: 

The Court of Appeal’s decision was valid and well-founded. . 

In the revocation of the recognition of refugee status, the standard of a substantial probability of persecution is to be applied to the likelihood of persecution, which the Court of Appeal failed to apply.

According to § 73 ( 1) (1) of the Asylum Procedure Act (AsylVfG), the recognition of refugee status is to be revoked immediately if the requirements for the latter cease to exist. This is the case in particular if the foreign national can no longer refuse to obtain protection from his home country following the cessation of the circumstances which resulted in the recognition of refugee status. With this provision the legislative authority has transposed the specifications according to Union law arising from Article 11 (1) (e )( f) of the Qualification Directive. The revocation requirements in § 73 (1) (1) ( 2) AsylVfG are therefore to be interpreted according to the corresponding provisions of the Directive, which refer in turn to Article 1C ( 5) and (6) of the Geneva Convention on Refugees.

According to Article 11 (1) ( e) of the Qualification Directive, a third country national is no longer a refugee if he can no longer refuse to obtain protection from his home country following the cessation of the circumstances on the basis of which refugee status was recognised. Upon verification of these grounds for cessation, the member states are required to determine according to Article 11 (2) of the Directive whether the change in circumstances is significant and not simply temporary so that the refugee’s fear of persecution can no longer be considered to be well-founded. Article 14 (2) of the Directive rules on the allocation of the burden of proof to the effect that the member state, notwithstanding the refugee’s obligation according to Article 4 (1) of the Directive to disclose all relevant facts and present all relevant documents in his possession, must prove in each individual case that the individual concerned is no longer or has never been a refugee.

The requirements according to Union law concerning the cessation of refugee status according to Article 11 (1) (e ) of the Qualification Directive have been confirmed by the Court of Justice of the European Union. According to the latter, the change in circumstances must be significant and not simply temporary so that the refugee’s fear of persecution can no longer be considered to bewell-founded. A significant change in the circumstances underpinning the recognition of refugee status presupposes that the actual conditions in the country of origin have clearly and fundamentally changed. The change in the circumstances underpinning the recognition of refugee status must not simply be of a temporary nature. Rather it must be confirmed that the factors which justified the refugee's fear of persecution and resulted in the recognition of refugee status can be considered to have been permanently removed.

Changes in the home country are only considered to be sufficiently significant and lasting if the refugee’s fear of persecution can no longer be deemed to be well-founded.The verification of such a change in circumstances in the country of origin is therefore intrinsically linked to the individual likelihood of persecution. This must be based on the standard of substantial probability according to the implementation of the Qualification Directive. A uniform standard of probability applies for the likelihood of persecution in the context of refugee protection. This standard of probability contained in the element of the statutory definition "... owing to a well-founded fear of being persecuted …“ in Article 2 (c ) of the Directive relates to the jurisprudence of the European Court of Human Rights (ECtHR) which applies the standard of “real risk” in the assessment of Article 3 (ECHR); this corresponds to the standard of substantial probability. If the recognition and cessation assessments are considered inversely, the same question is raised concerning the existence of a well-founded fear of persecution according to Article 9 in conjunction with Article 10 of the Directive with regard to the cessation  of refugee status: the latter is also determined according to whether a substantial probability of persecution exists.

In the case in point, the Court of Appeal denied the existence of a significant, lasting change in circumstances in the country of origin on the basis of an inaccurate evaluation of the risk of persecution. The latter was not based on the standard of a substantial probability of persecution but rather on adequate safety from persecution. 

Outcome: 

The Court of Appeal’s decision was accepted. The decision by the High Administrative Court of Mecklenburg-Vorpommern of 9 March 2011 was overturned. The case was referred back to the High Administrative Court for further hearing and decision.  

Subsequent Proceedings : 

Outcome unknown and proceedings still pending.