Germany - Federal Administrative Court, 7 July 2011, 10 C 26.10

Country of Decision:
Country of Applicant:
Date of Decision:
17-07-2011
Citation:
10 C 26.10
Additional Citation:
asyl.net/M19056
Court Name:
Federal Administrative Court
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1F > Art 1F(b)
International Law > 1951 Refugee Convention > Art 1F > Art 1F(c)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 3
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 17
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 22
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.2 (c)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.2 (b)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 12 > Art 12.3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 14
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 21 > Art 21.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 21
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
UNHCR Handbook > Para 163
National / Other Legislative Provisions:
UN Charter
UN Charter - Preamble
UN Charter - Art 1
UN Charter - Art 2
TFEU
TFEU - Art 288 (3)
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Headnote: 

This case concerned the revocation of asylum and refugee status in the case of a former official of the Kurdistan Workers' Party (PKK) (following the European Court of Justice case of Federal Republic of Germany v B (C-57/09) and D (C-101/09), 09 November 2010).

Facts: 

The applicant is a former senior PKK official. He left the organisation because of disagreements with its leadership over political issues. He applied for asylum in Germany in 2001 and stated that he was at risk of persecution by both the PKK and the Turkish state. The authorities granted asylum (under German law) and refugee status.

In January 2002 a new act to combat terrorism ("Terrorismusbekämpfungsgesetz") came into force. Subsequently, the authorities revoked the applicant's asylum and refugee status in May 2004. The authorities argued that the applicant as a former senior member of the PKK was partly responsible for its terrorist activities. He was suspected of having committed a serious non-political crime and of having supported a terrorist group.

The Administrative Court Gelsenkirchen, confirmed by the High Administrative Court Nordrhein-Westfalen, annulled the revocation. The High Administrative Court found in its decision of 27 March 2007 that the applicant no longer posed a risk since he had dissociated himself from his former objectives. In case of a return to Turkey he was at risk of being tortured.

On 25 November 2008, the Federal Administrative Court referred the case to the European Court of Justice for a preliminary ruling concerning the interpretation of Art 12.2 (b) and (c) of the Qualification Directive. The European Court of Justice had issued its judgment on 09 November 2010 (Federal Republic of Germany vs. B (C-57/09) and D (C-101/09)).

Decision & Reasoning: 

In decisions on revocation, the new legislation (transposing the Qualification Directive) is applicable even if refugee status has been granted before the Qualification Directive came into force. Under the new legislation, the revocation of refugee status is obligatory in case of exclusion (Art 12 of the Qualification Directive).

Since the revocation does not take effect in the past, but only in the future, it does not result in a retroactive reassessment of the substance of the case (which would have amounted to a violation of the principle of non-retroactivity). Therefore, the applicant cannot claim that he had a legitimate interest in the continuity of his refugee status. Furthermore, the negative effect of the revocation is limited since the authorities might grant protection from deportation status if there is a risk of treatment in violation of Art 3 of the European Convention on Human Rights in Turkey.

Therefore, the decisive question is whether an exclusion clause is applicable regarding the applicant. In order to answer this question, the findings of the High Administrative Court were not sufficient.

Under the jurisdiction of the European Court of Justice, concurred with by the Federal Administrative Court, any risk a person poses currently (i.e. at the time of the decision-making) has to be taken into consideration under Art 14.4 and Art 21.2 of the Qualification Directive, while grounds for exclusion under Art 12.2 of the Qualification Directive are intended as a penalty for acts committed in the past, regardless of whether the person concerned still poses a risk. In this context the European Court of Justice had ruled that it is not necessary to undertake a proportionality assessment, since this has already taken place within the assessment of the seriousness of the act committed by the person concerned and of that person’s individual responsibility.

Regarding the exclusion clause of Art 12.2 (c) of the Qualification Directive, the High Administrative Court proceeded from the assumption that an individual, in order to have committed an act contrary to the principles of the United Nations, must have been in a position of power in a United Nations member State and must have been instrumental to his State’s infringement of these principles (according to Nr. 163 UNHCR handbook). However, such a restrictive interpretation is no longer permissible following the decision of the European Court of Justice, in particular its findings on acts of international terrorism. This follows from Recital 22 of the Qualification Directive, which refers to resolutions of the UN Security Council on anti-terrorist measures. It can be concluded from these resolutions that the UN Security Council holds the opinion that terrorist acts are always contrary to the purposes and principles of the United Nations, regardless of the participation of a state. The European Court of Justice therefore concluded that persons who participate in terrorist acts can fulfill the criteria of Art 12.2 (c) of the Qualification Directive. Within the scope of this provision, neither the existence of a risk at present has to be established, nor is it necessary that a renewed proportionality assessment is undertaken.

The High Administrative Court has to reassess whether the applicant falls within the scope of Art 12 of the Qualification Directive. To fulfill this assumption it is not sufficient if the person concerned is or has been a member of a group mentioned in the so-called EU terror list and supports, or has supported, its armed struggle. In fact, it has to be examined individually whether the acts in question constituted serious non-political crimes and if the person concerned is individually responsible for these acts. A senior position in the organisation might be an indication; however, it does not render an individual assessment unnecessary. The same applies to the exclusion ground "acts contrary to the purposes and principles of the United Nations".

Regarding the exclusion ground laid down in Art 12.2 (b) of the Qualification Directive, the High Administrative Court will have to assess if the applicant is criminally liable for criminal acts of the PKK (as perpetrator, instigator, or accomplice).

The exclusion ground laid down in Art 12.2 (c) of the Qualification Directive does not require that criminal acts have been committed, because terrorist acts are always contrary to the purposes and principles of the United Nations, regardless of their relevance in terms of criminal law. Therefore, assistance in the preparation of terrorist acts is a sufficient reason for the application of this exclusion ground. However, it is also necessary to assess the applicant’s contribution individually in this respect.

Outcome: 

The case was referred back to the High Administrative Court/Oberverwaltungsgericht Nordrhein-Westfalen.

Subsequent Proceedings : 

Unknown

Other sources cited: 
Case Law Cited: 

CJEU - C-226/08 Stadt Papenburg v Bundesrepublik Deutschland

UK - MH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ 226

Germany - Federal Administrative Court, 11 September 2007, 10 C 8.07

Germany - Federal Administrative Court, 25 November 2008, 10 C 46.07

Germany - Federal Constitutional Court, 30 June 2009, 2 BvE 2.08

Germany - Federal Administrative Court, 1 June 2011, 10 C 25.10

Germany - Federal Constitutional Court, 13 March 2007, 1 BvF 1/05

Germany - Federal Constitutional Court,12 March 2008, 2 BvR 378/05

Germany - Federal Constitutional Court, 6 July 2010, 2 BvR 2661/06