Germany - High Administrative Court Hessen, 25 August 2011, 8 A 1657/10.A

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Headnote: 

The applicant was eligible for subsidiary protection as an internal armed conflict is taking place in Logar. The applicant, in case of return to Afghanistan, could not relocate to Kabul, since he could not secure his livelihood there. In order to secure his livelihood, he could not rely on property which his family had possessed in the province of Logar.

Facts: 

The applicant originates from a town in the province Logar, south of Kabul. He is of Tajik ethnicity and Shiite religion. In 2002, he applied for asylum in Germany. He claimed that his membership in the youth organization of the former Communist Party (People’s Democratic Party of Afghanistan, PDPA) became known and the village elders had tried to detain him. Before that he had been imprisoned by the Taliban for two years.

The authorities rejected his application arguing that the risk of persecution by the Taliban had ceased to exist and that the applicant, being a non-leading member of the PDPA, would not be at risk of being subject to acts of persecution. In January 2007, the applicant filed a subsequent application, claiming that the situation in Kabul had deteriorated significantly. Furthermore, he did not have any family network in Afghanistan and there was still fighting against the Taliban in his home province. 

The authorities and the Administrative Court rejected his subsequent application. However, in January 2010, the High Administrative Court found that there was an internal armed conflict in the province of Logar and therefore the applicant was eligible for subsidiary protection. The court held that there was no internal protection alternative for the applicant in Kabul, since he would not be able to safeguard his means of existence under conditions fit for a human being.

The Federal Administrative Court annulled the decision of the High Administrative Court in July 2010 (Federal Administrative Court, 14 July 2010, 10 B 7.10) and held that the investigations regarding the applicant’s assets in Afghanistan were not sufficient. The case was sent back to the High Administrative Court.

Decision & Reasoning: 

The High Administrative Court upheld its position according to which the applicant was eligible for subsidiary protection under Art. 15 (c) of the Qualification Directive.

At the time of its first decision (January 2010), the court found that an internal armed conflict took place in the applicant’s home region, the province of Logar, in the form of civil war-like clashes and guerilla fighting. In the court's opinion, based on expert opinions, on other sources of information collected for the proceedings and on publicly available news items, the situation has worsened to such an extent that the armed conflict has reached a high level of indiscriminate violence which involves a high “density of danger” for the civilian population. It can be established that virtually the whole population of the province of Logar is subject to “acts of arbitrary, indiscriminate violence” by the parties to the conflict. The court found:

In addition, the applicant is facing an even higher risk due to his Tajik ethnicity, his Shiite religion, his previous membership of the youth organization of the PDPA, which has become known in the meantime, and due to the fact that his family (formerly) owned real estate in his hometown. These circumstances have to be taken into consideration in the present context as they suggest that the applicant is not only affected more severely than others by the general indiscriminate violence (like, for example, physicians or journalists), but since they expose him additionally to the risk of target-oriented acts of violence (like, for example, membership of a religious or ethnic group). It is precisely such target-oriented assaults which can be expected to intensify in the province of Logar which, to a great extent, is dominated by insurgents.

The applicant cannot be referred to internal protection under Art. 8 of the Qualification Directive. The High Administrative Court upholds its position according to which the applicant is not in a position to secure his livelihood, even in Kabul. On the basis of the expert opinions obtained in the course of the present proceedings, the court is convinced that the applicant would not be in a position to utilize his real estate in Logar in order to secure his livelihood in Kabul.

Outcome: 

The applicant was eligible for subsidiary protection. 

Observations/Comments: 

In January 2010 the High Administrative Court of Hessen had already decided in this case that the applicant was eligible for subsidiary protection (25 January 2010, 8 A 303/09.A (asyl.net, M16618)). The Federal Administrative Court, however, annulled this judgment and remanded the case to the High Administrative Court (Federal Administrative Court, 14 July 2010, 10 B 7.10).

Other sources cited: 

Bank, NVwZ 2009 S. 695 <698 f., insbes. FN 29>

Tiedemann, ZAR 2011, Page 206 [212 f.]