Germany - Federal Administrative Court, 7 September 2010, 10 C 11.09

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Headnote: 

The facilitated standard of proof under Art. 4.4 of the Qualification Directive may be applied to the examination of subsidiary protection. Under German law, subsidiary protection is not excluded on the ground that the applicant is a “danger to the community”.

Facts: 

The applicant in this case was of Kurdish ethnicity. He applied for asylum in Germany in December 1990, claiming that he had been at risk of political persecution in Turkey as he had been suspected of being a supporter of the PKK. The Administrative Court of Cologne obliged the authorities in 1995 to grant protection status. The Administrative Court found that the applicant was at risk of imprisonment and torture in Turkey.

In December 2000 the applicant was sentenced to seven years in jail in Germany for aggravated robbery in two cases. In October 2005 the authorities revoked refugee status on the grounds that the applicant had to be regarded as a “danger to the community” under Section 60 (8) (1) of the German Residence Act. Furthermore, the authorities argued that the applicant was not entitled to other forms of protection (prohibition of deportation) as he would not be at risk of torture or other treatment violating his human rights in Turkey.

An Administrative Court initially annulled the revocation, but the High Administrative Court of Nordrhein-Westfalen declared it to be lawful in July 2008. The High Administrative Court found that there were no indications to support the assumption that the applicant would still be at risk of torture with considerable probability. In particular, there were no indications that the Turkish authorities had registered the applicant as a supporter of the PKK or that they were searching for him.

The Federal Administrative Court granted leave for the further review (Revision) insofar as the exclusion from subsidiary or other forms of protection were concerned. The revocation of refugee status thus became legally valid.

Decision & Reasoning: 

The further appeal to the Federal Administrative Court (Revision) had merit. According to the Court:

The High Administrative Court had failed to examine whether the applicant benefited from the facilitated standard of proof under Art. 4.4 of the Qualification Directive with regard to a risk of torture or inhuman or degrading treatment.

The subject of the further appeal procedure is the protection as established under European law in the form of Art. 15 of the Qualification Directive. In the present case only Section 60 (2) of the Residence Act/Art. 15 (b) of the Qualification Directive is relevant.

Initially, the High Administrative Court has correctly found that the granting of subsidiary protection according to Art. 15 (b) of the Qualification Directive is not excluded on the ground that the applicant constitutes a “danger to the community” (Section 60 (8) (1) of the German Residence Act). According to German law, this exclusion ground is only applicable to refugee status and not to other forms of protection. It is true that Art. 17 (1) (d) of the Qualification Directive contains a similar exclusion ground which is applicable to subsidiary protection. However, this provision has been transposed into German law in a different manner: This exclusion ground takes effect in German law only when it comes to the issue of granting or denying a residence permit, it has no effect on the examination of subsidiary protection as such.

However, the High Administrative Court had unlawfully failed to apply Art. 4.4 of the Qualification Directive in the course of the examination of subsidiary protection. Art. 4.4 of the Qualification Directive becomes relevant for the examination of subsidiary protection if the applicant had been subject to serious harm or direct threats of serious harm within the meaning of Art. 15 of the Qualification Directive before he left his country of origin. Therefore, if past persecution has been established within the meaning of refugee law (as in the present case), it has to be examined whether such serious harm has been established at the same time, e.g. if the act of persecution consists of torture or inhuman or degrading treatment or punishment. Furthermore, in stating that the applicant is still at risk of “such” harm, Art. 4.4 of the Qualification Directive presupposes that there is an internal nexus between the harm suffered in the past and the possible future harm.

Outcome: 

The case was sent back to the High Administrative Court of Nordrhein-Westfalen.

Case Law Cited: 

Germany - Federal Administrative Court, 22 July 2010, 10 B 20.10