Germany - High Administrative Court Baden-Wuerttemberg, 25 March 2010, A 2 S 364/09

Country of Decision:
Country of Applicant:
Date of Decision:
25-03-2010
Citation:
A 2 S 364/09
Additional Citation:
asyl.net/M16872
Court Name:
High Administrative Court Baden-Wuerttemberg
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Headnote: 

The revocation of refugee status in the case of a Kurd from Iraq was upheld: Even if one presumes that an internal armed conflict is taking place in the applicant’s home province (Tamim), it cannot be assumed that the indiscriminate violence has reached such a high level that practically any civilian is at risk of a serious and individual threat simply by his or her presence in the region.

Facts: 

The applicant is an Iraqi national of Kurdish ethnicity. He applied for asylum in Germany in 2001 and was granted refugee status in April 2001. In June 2005 the Federal Office for Migration and Refugees revoked the refugee status on the grounds that there was no risk of persecution following the downfall of Saddam Hussein's government. Other forms of protection were not granted to applicant  as the poor security and humanitarian situation  posed a general risk but not an extreme (individual) risk. 

The applicant appealed against the revocation. As a result of this appeal, the Administrative Court of Sigmaringen annulled the revocation decision in May 2007. The Administrative Court found that revocation was only admissible if a risk of persecution in the sense of Section 60 (1) Residence Act (refugee status) could be excluded with sufficient certainty. Even after the downfall of Saddam Hussein's regime it could not be excluded that supporters of that regime posed an on-going threat against which neither Iraqi security forces nor international forces could offer protection.

The German authorities asked the High Administrative Court to annul this decision. This further appeal was granted by the High Administrative Court.

Decision & Reasoning: 

The Administrative Court's annulment of the authorities' decision is unlawful as the revocation of refugee status was legitimate. The authorities were also right in finding that no grounds for other forms of protection (under section 60 Residence Act) exist. It was found that:

i) As Saddam Hussein's regime had irrevocably lost its authority over Iraq, the applicant was not at risk of persecution because of alleged former political activities or because of his illegal exit from Iraq or because his asylum application in exile.

There was also no relevant risk of persecution for other reasons (in the sense of Section 60 (1) Residence Act/i.e. the refugee definition). The Administrative Court had assumed that the applicant had been “an exposed critic” of Saddam Hussein's regime. However, this assumption is neither supported by the applicant’s own statements nor did the Administrative Court examine the credibility of these statements. The Administrative Court had not explained why supporters of the former regime would take action against the applicant.

ii) Furthermore, the applicant cannot be granted “prohibition of deportation” under Section 60 (7) of the Residence Act. In particular, he is not entitled to subsidiary protection under Section 60 (7) of the Second Sentence Residence Act/Art. 15 (c) of the Qualification Directive.

When defining the term “international or internal armed conflict” under article 15 (c) of the Qualification Directive one has to take into account international law. This implies that combat operations must have an intensity which is characteristic of a civil war situation “but have to exceed situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. Internal crises which fall in between these two definitions must not be excluded out of hand from fulfilling the standards of article 15 (c) of the Qualification Directive. However, the conflict had to be marked by a certain degree of intensity and duration (cf. Federal Administrative Court of 24 June 2008, 10 C 43.07).

By this measure, the situation considered presumably did not justify the assumption that an international or internal armed conflict existed in Iraq. However, this question can be left open here for even if one assumes that an international or internal armed conflict was taking place, subsidiary protection can only be granted if there is a serious and individual threat in the context of the conflict. According to the Federal Administrative Court (decision of 14 July 2009, 10 C 9.08) it is possible that a serious and individual threat is also posed in an extraordinary situation, which is characterised by such a high level of risk that any civilian is at risk of a serious and individual threat simply by his or her presence in the region. However, such a high level of risk cannot be established for the applicant’s home region, Tamim province.

On the basis of various sources (e.g. the Foreign Office's country report of 12 August 2009) it was not concluded that the security situation in Iraq was disastrous. However, in order to establish the degree of danger one has to put the number of victims of bomb attacks in relation to the  whole population of Iraq. The information department of the Federal Office for Migration and Refugees quotes from a report by the British NGO Iraq Body Count, according to which the number of civilian victims in 2009 had been at the lowest level since 2003. In Tamim province 99 bomb attacks were recorded in which 288 people were killed. This meant that 31.9 in 100,000 people were killed, assuming that the number of inhabitants in this province is at 900,000, or 25.5 in 100,000 if the number of inhabitants is estimated at 1,130,000 

So even if it was presumed that an internal armed conflict was taking place in Tamim province, it cannot be assumed that the indiscriminate violence which is characteristic of that conflict had reached such a high level that any person was at risk of a serious and individual threat simply by his or her presence in the region.

Outcome: 

The Decision of the Administrative Court was annulled; therefore the initial revocation of refugee status by the German authorities was upheld.

Subsequent Proceedings : 

None (the High Administrative Court did not grant a further review/”Revision” by the Federal Administrative Court).