Germany - Federal Administrative Court, 24 February 2011, 10 C 3.10

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Headnote: 

Application of the CJEU ‘s ruling of the 2 March 2010, Abdulla et al. Case C 175/08 et al, following the request for a preliminary ruling by the Federal Administrative Court.

The High Administrative Court was correct in holding that the circumstances upon which the recognition of refugee status was based have ceased to exist. However, it did not examine sufficiently whether a well-founded fear of persecution persists for other reasons.

Facts: 

The applicants are a married couple from Iraq. In January 2002, they applied for asylum in Germany stating that the husband was being sought by the Iraqi secret service as an active member of the “Democratic People’s Party” and his wife has been ill-treated for this reason. They were recognized as refugees in February 2002 on the grounds that they had feared persecution solely because they applied for asylum abroad.

After the downfall Saddam Hussein's regime the authorities revoked the applicants' refugee status in January 2005. In August 2005, the Administrative Court declared the revocation illegal. The further appeal (Berufung) against this decision was granted by the High Administrative Court of Schleswig-Holstein.

In August 2006, the High Administrative Court annulled the decision of the Administrative Court and declared the revocation of refugee status was lawful. The Court held that the previous risk of persecution by the state no longer existed and there were no indications of a risk of persecution by non-state actors.

In the course of the further appeal proceedings at the Federal Administrative Court (Revisionsverfahren), the Federal Administrative Court in March 2008 sought a preliminary ruling from the Court of Justice of the European Union to clarify some of the requirements for the cessation of refugee status. The Court of Justice replied to these questions in its judgment of 2 March 2010 (Abdulla et al. Case C 175/08 et al.).

Decision & Reasoning: 

Subsequent to the decision in Abdulla et al. of the European Court of Justice (2 March 2010, Case C-175/08 et al.), the Federal Administrative Court held that refugee status has to be revoked under Art. 11 (1) (e) of the Qualification Directive if the circumstances in the country of origin, on which the well-founded fear of persecution was based, have ceased to exist significantly and not only temporarily and if there are no other reasons to fear persecution.

The Court of Justice of the European Union clarified that the term “protection of the country of nationality” of Art. 11 (1) (e) of the Qualification Directive refers only to the protection which had previously been lacking against acts of persecution envisaged by the Directive (paragraph 67 of the judgment). A precondition for the assumption of a “durable” change of circumstances is the existence of a state or another actor according to Art. 7 Qualification Directive, who takes reasonable steps in order to prevent the persecution on which the recognition was based.

When examining if persecution still exists, it is important to differentiate between the reasons for persecution on which the refugee has based the application:

If the refugee bases his application on the same reason as the one that led to the recognition of refugee status, the assessment to be carried out will normally be covered by Art. 11 (2) of the Qualification Directive (cf. European Court of Justice, Abdulla, paragraph 98). Accordingly, it has to be examined if there actually is a significant and non-temporary change in circumstances.

If, however, the refugee relies on a different reason for persecution, there is a lack of connection with the circumstances on which the recognition of refugee status was based. Therefore, the cessation of circumstances cannot be examined. In this case, however, the facilitated standard of proof according to Art. 4 (4) Qualification Directive is applicable, if the previous acts of persecution or threats of persecution are connected with the reason for persecution the refugee is now basing his/her claim on (European Court of Justice, Abdulla, paragraph 96).

Subject to these requirements, the High Administrative Court's finding, according to which the circumstances which led to the granting of refugee status had ceased to exist, was lawful. The applicants were recognized as refugees because they applied for asylum abroad. The applicants are no longer at risk of being persecuted by any party in Iraq because of their asylum application abroad. This also implies that there is a state actor within the meaning of Art. 7 of the Qualification Directive, in the form of the new Iraqi government, which has eliminated the former state sanctions based on asylum applications and thus has taken appropriate steps to permanently prevent the persecution on which the recognition as a refugee was based.

However, the High Administrative Court did not sufficiently examine whether the applicants might have a well-founded fear of persecution due to other circumstances: The applicant (husband) has claimed that he would still be at risk of persecution, being a member of the “Democratic People’s Party”. According to his statement, the leaders of this party had to go into hiding for fear of persecution. In addition, the applicant fears that he may have difficulties with a Sunni group named “Bedr”. The High Administrative Court did not sufficiently resolve this issue, in particular since the applicant was not given an opportunity to present his case in an oral hearing in the further appeal procedure.

The High Administrative Court must grant an oral hearing in the procedure which now has to take place, and it has to examine the extent to which the risks claimed by the applicant are based on the same persecution ground within the meaning of Art. 2 (c) of the Qualification Directive. If this is the case, it will have to examine if the establishment of a new government as an actor of protection according to Art. 7 of the Qualification Directive is sufficiently significant in order to no longer consider the applicant’s fear of persecution as well founded.

Outcome: 

The case was sent back to the High Administrative Court of Schleswig-Holstein for a further hearing and decision.

Subsequent Proceedings : 

Unknown

Observations/Comments: 

An English translation (commissioned by the Federal Administrative Court, but not officially authorised) is available under the following link:

http://www.bverwg.de/enid/4d4d678b792ef9de2cf85c5814c2efb7,0/Decisions_i...