Germany - Federal Administrative Court, 22 May 2012, 1 C 8.11

Country of Decision:
Country of Applicant:
Date of Decision:
22-05-2012
Citation:
1 C 8.11
Additional Citation:
asyl.net M19868
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 5 Abs. 4
Germany - AufenthG (Residence Act) - § 25 Abs. 2
Germany - AufenthG (Residence Act) - § 25 Abs. 1(2)
Germany - AufenthG (Residence Act) - § 54 Abs. 5
Germany - AufenthG (Residence Act) - § 56 Abs. 5(2)
Germany - AufenthG (Residence Act) - § 60 Abs. 8
Germany - AufenthG (Residence Act) - § 56 Abs. 5(3)
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Headnote: 

A recognised refugee may only be refused a residence document if there are serious grounds to consider that he is a danger to the security of the Federal Republic of Germany.

The question as to whether a refugee should be refused a residence document because he supports a terrorist organisation can only be determined following a comprehensive, specific verification of the activities of the organisation and the foreign national based on an overall evaluation by the trial judge (following the decision of 15 March 2005 – Federal Administrative Court 1 C 26.03 - Federal Administrative Court 123, 114).

Facts: 

The Applicant, a recognised refugee of Turkish nationality and Kurdish ethnicity, requested an extension of his residence document. In March 2005, the asylum authorities attempted to withdraw the Applicant’s refugee protection, but the Administrative Court obliged the asylum authorities to continue to recognise the Applicant as a refugee. The extension of the validity of the residence document was refused by the Respondent Authority as the Applicant had been actively involved since 2004 in the KONGRA-GEL (Kurdistan Workers’ Party), the successor organisation to the banned PKK. The High Administrative Court upheld the Applicant’s appeal in its decision of 24 March 2011 and obliged the Respondent to issue the Applicant with a residence permit. The authorities then appealed to the Federal Administrative Court. 

Decision & Reasoning: 

The review sought by the authorities was successful. The Court of Appeal had incorrectly assumed that the grounds for denying approval in clause 5 (4) in conjunction with clause (54) No. 5 of the Residence Act (supporting a terrorist organisation) were not applicable in the case of the issuance of a residence permit to a recognised refugee. However, the primacy in application of EU law requires an exception to  the grounds for denying approval to cases in which there are serious groundsto consider that the refugee is a danger to the security of the Federal Republic of Germany.

The Applicant is recognised as a refugee and as such fulfils the requirements for the issuance of a residence permit. In principle, however, residence permits may not be issued to foreign nationals in relation to whom grounds for expulsion apply. This does not apply, however, to the issuance of a residence permit to recognised refugees. Moreover, the specific grounds for denying approval (clause 25 (2) (2) in conjunction with (1) (2) of the Residence Act) according to which a refugee will not be issued a residence permit if he has been expelled for serious reasons of public security and order, are not applicable as the claimant has not been expelled.  

Article 21 (3) in conjunction with (2 ) and (1) of the Qualification Directive states that residence documents may only be refused for recognised refugees in cases in which there are serious grounds for considering the individual concerned as a danger to the security of the Federal Republic of Germany. In contrast to the national right of residence, which according to clause 56 (1) (3) of the Residence Act also assimilates serious grounds in relation to public security and order with the supporting of a terrorist organisation, the Qualification Directive does not contain any legal presumption in this respect but rather demands an individual verification taking into account the circumstances of the particular case concerned. The threshold criteria for serious grounds can be derived on the basis of the jurisprudence on the exclusion provision of clause 60 (8) (1) of the Residence Act in line with Article 33 (2) of the Geneva Convention on Refugees.

According to the latter, the simple support or membership of a terrorist organisation is not sufficient; rather concrete evidence must be obtained of the danger presented by the foreign national in relation to the organisation. Serious grounds are often not confirmed when the individual concerned was involved in the organisation by participating in its activities or by making individual financial contributions to the latter. Rather the danger presented by the foreign national based on an evaluation of the weighting of the grounds for exclusion must be so serious that it justifies the removal of the refoulement ban in Article 33 of the Geneva Convention on Refugees. This is generally only the case when the refugee is associated in a qualified manner with an organisation, which supports terrorism, in particular through personal acts of violence or as an official. 

The question as to the type of involvement required by the foreign national in the organisation to justify his reaching the increased danger threshold is not determined in an abstract manner but is dependent on an overall evaluation of the circumstances surrounding the individual case as well as the degree of danger presented by the organisation, which may be determined by its structure, size and propensity to violence. Since the Federal Administrative Court is not able to reach a conclusive decision due to a lack of information from the High Administrative Court as to whether the Applicant’s behaviour exceeds this increased danger threshold, the case will have to be referred back to the High Administrative Court for further hearing and decision.  

Outcome: 

The Respondent’s review was upheld. The High Administrative Court is required to re-hear and reach a decision on the case.  

Case Law Cited: 

Germany - Federal Administrative Court, 30 March 1999, 9 C 31.98

Deutschland - Bundesverwaltungsgericht, 15 Marz 2005, 1 C 26.03