Germany - Federal Administrative Court, 21 April 2009, 10 C 11.08

Printer-friendly versionPrinter-friendly version
Headnote: 

This case concerned the assessment of "group" persecution against Arab Sunnites in Iraq. In order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the entire group of persons affected by that persecution ( "density of persecution"). Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included.

Facts: 

The applicant is an Iraqi citizen of Arabic ethnicity and Sunnite Islamic belief. He came to Germany in April 2006 and applied for asylum. The application was rejected as manifestly unfounded. The authorities, inter alia, found that the requirements of Art 60 (1) of the Residence Act (Art. 1 A. (2) Refugee Convention and Art 9 and 10 of the Qualification Directive) were not met.

Following the applicant’s appeal, the Administrative Court ordered the authorities to grant him refugee status as they found that he would be at risk as an Arab Sunni returning to Iraq. The High Administrative Court of Bayern rejected the authorities’ further appeal/"Berufung", where they argued that it was not probable that the applicant would be at risk of persecution from non-State actors and that it was not possible to carry out a detailed assessment and determination of the number and intensity of acts of persecution. Furthermore, it was found that the applicant could not find protection in other parts of his country of origin.

In their further appeal/"Revision", the authorities argued that the Court’s findings deviated from consistent case law regarding the issue of group persecution and its findings on the matter of density of acts of persecution were not sufficient.

Decision & Reasoning: 

The Federal Administrative Court explained in detail the legal requirements to establish the existence of group persecution. They noted that the risk of being persecuted can also result from acts of persecution against third parties; if they are persecuted for characteristics related to asylum (reasons for persecution Art 10 of the Qualification Directive)  that they share with the applicant, and if the applicant, in case of return, would be in a similar situation regarding place, time and danger of recurrence (danger of group persecution). The court stated:

In this context it also needs to be considered if the persecution is only related to a certain unchangeable characteristic, e.g. religion, or if there have to be further characteristics in order to form a persecuted group and to assume that an individual person is being persecuted as a member of that group. The assumption of group persecution, meaning persecution of every single member of the group, requires a certain “density of persecution”, justifying a legal presumption of persecution of every group member. These principles, initially developed in the context of direct and indirect State persecution, are also applicable in the context of private persecution by non-State actors under Art. 60 (1) sentence (4) (c) of the Residence Act (in compliance with Art. 6 (c) of the Qualification Directive), which now governs explicitly private persecution by non-State actors.

Under the Qualification Directive, the principles developed in German asylum law in the context of group persecution are still applicable. The concept of group persecution is by its very nature a facilitated standard of proof and in this respect compatible with basic principles of the 1951 Refugee Convention and the Qualification Directive. Art 9.1 of the Qualification Directive defines the relevant acts of persecution, whereas Art 10 of the Qualification Directive defines the “characteristics relevant to asylum” as “reasons for persecution”.

The court found that in order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the whole group of persons affected by that persecution. Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included. The application of assessing group persecution is comparable to the European Court of Justice’s consideration of subsidiary protection under Art 15 (c) of the Qualification Directive (Elgafaji, 17 February 2009, C 465/07), linking the degree of danger for the population or parts of the population to the individual danger of an individual person.

By failing to assess this, the High Administrative Court’s decision has to be reconsidered.

Outcome: 

The decision of the High Administrative Court was annulled and referred back to the High Administrative Court.

Subsequent Proceedings : 

Not known.

Case Law Cited: 

Germany - Federal Administrative Court, 1 February 2007, 1 C 24.06

Germany - Federal Administrative Court, 18 July 2006, 1 C 15.05