Germany - High Administrative Court Sachsen-Anhalt, 25 May 2011, 3 L 374/09

Country of Decision:
Country of Applicant:
Date of Decision:
25-05-2011
Citation:
3 L 374/09
Additional Citation:
asyl.net/M18809
Court Name:
High Administrative Court Sachsen-Anhalt
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Headnote: 

A stateless Kurd from Syria was not recognised as a refugee. The court held:

  1. The denial of re-entry of stateless Kurds is not to be considered political persecution because a general institutional practice cannot be detected which is aimed against ethnic Kurds in a manner that is relevant to asylum grounds (Art 10 of the Qualification Directive).
  2. Whether the legal practice of Syrian legislation on citizenship and the denial of re-entry are part of a restrictive policy towards Kurds, and support the aims of the State of Syria in respect of its settlement policy, is not important when determining political persecution under Section 60 (1) sentence (5) of the Residence Act in connection with Art. 9 and 10 Qualification Directive.
Decision & Reasoning: 

The Court stated:

Regarding his recognition as a refugee, the applicant can neither refer to the denial of re-entry for stateless persons nor to individual reasons. According to the case law of the Federal Administrative Court, the denial of nationality may constitute political persecution. However, the denial of nationality only constitutes political persecution in terms of Section 60 (1) Residence Act, if it is linked with characteristics relevant to asylum (persecution grounds) within the meaning of this provision. The denial of nationality which merely represents an administrative sanction for a breach of a duty that is incumbent upon all citizens alike cannot be considered as persecution that is relevant under asylum law. However, if the persecution by the state of present citizenship is inherent in precipitating statelessness this is to be considered a (persisting) persecution by this state which is relevant under asylum law.

The court proceeds from the assumption that the applicant is stateless, because he is not considered a Syrian citizen by the Syrian state, but is a registered foreigner. There is no doubt, that the provided extract of the civil registry of the province Al Hassake of 17 November 2005 is genuine.

The fact that the Syrian authorities deny re-entry to stateless Kurds does not justify the assumption that they are persecuted within the meaning of Section 60 (1) of the Residence Act. The denial of re-entry of this group after illegal departure is not linked to any of the political reasons mentioned in Section 60 (1) of the Residence Act (unanimous case law of High Administrative Courts: High Administrative Court Hessen, 06 August 2009,3 A 2842/05. A ; High Administrative Court Nordrhein-Westfalen, 29 August 2007, 5 A 331/04.A; High Administrative Court Berlin-Brandenburg, 22 December 2006, 3 B 19.05).

The court cannot establish that the denial of re-entry for Kurds from Syria, who are considered stateless there, is aimed at their Kurdish ethnicity. This follows from the fact that not all Kurds living in Syria, who have left the country illegally and want to return, are affected by this denial.

An argument against a denial of re-entry being related to ethnicity is the general political circumstances of the ethnic Kurds in Syria.

The (restrictive) legal practice of the Syrian State in the interpretation and implementation of Syrian citizenship legislation is not related to ethnicity. Whether the legal practice of Syrian legislation on citizenship and the denial of re-entry are part of a restrictive policy towards Kurds, and support the aims of the State of Syria in respect of its settlement policy, is not important when determining political persecution under Section 60 (1) sentence (5) of the Residence Act in connection with Art. 9 and 10 of the Qualification Directive. The term “act of persecution” within the meaning of Art. 9 of the Qualification Directive1 does not only imply that a certain conduct of the potential actor of persecution causes a severe violation of a basic human right or a comparably severe violation of rights by means of accumulation of different measures (Art. 9.1 (a) and (b) Qualification Directive), but also requires conduct with the specific purpose of violating such a legally protected right. Such conduct was not manifested in this case.

Outcome: 

The decision of the Administrative Court Magdeburg of 26 October 2009 was amended. The applicant’s appeal against the decision of the authorities of 9 June 2008 was dismissed.

Observations/Comments: 

An English translation (commissioned by the Federal Administrative Court, but not officially authorised) of the decision of the Federal Administrative Court of  26 February 2009, 10 C 50.07, cited in this case is available at:

http://www.bverwg.de/enid/ce95ae565812bff2319bc71e59327220,0/Decisions_i...

1.The judgment of the High Administrative Court Sachsen-Anhalt actually refers to Art. 3 QD (see page 19 of the judgment). However, it misquotes a decision of the Federal Administrative Court of 19 January 2009, which in fact refers to Art. 9 QD (paragraph 22 of the decision of the FedAdminCourt). Federal Administrative Court, 19 January 2009, 10 C 52.07: An English translation (commissioned by the Federal Administrative Court, but not officially authorized) is available at:

http://www.bverwg.de/enid/1244e0cc84cb592c142c5c68c9b88e87,0/Decisions_i...

Other sources cited: 

Kurdwatch, Stateless Kurds in Syria, March 2010 - available at www.kurdwatch.org

Case Law Cited: 

Germany - High Administrative Court Berlin-Brandenburg, 22 December 2006, 3 B 19.05

Germany - High Administrative Court Hessen, 06 August 2009, 3 A 2842/05. A

Germany - High Administrative Court Nordrhein-Westfalen, 29 August 2007, 15 A 331/04.A