Federal Administrative Court

Asylum Procedure Act Section 28
Residence Act Section 60 (1) Sentence 1
Geneva Convention Art. 1A (2), Art. 33 (1)
Directive 2004/83/EC Art. 5

Headwords:
Exception; exceptional case; refugee status; follow-up application; follow-up proceedings; post-flight reason; post-flight circumstances; regular case; reason for normal exclusion; post-flight circumstance created by party himself; subjective post-flight reason; recognition of refugee status.

Headnotes:
According to Section 28 (2) of the Asylum Procedure Act, post-flight circumstances created by the individual himself after the conclusion of asylum proceedings do not as a rule result in recognition of refugee status. To establish an exception to this rule, in cases of political activity in exile the continuity in content and time of the convictions outwardly acted upon is indeed an important indicator, but is not sufficient in itself to refute the presumption under the statutory norm. Rather, the applicant for asylum must furnish good reasons why he first became politically active in exile, or intensified his former activities, only after an unsuccessful asylum proceeding.

Decision of the 10th Division of 18 December 2008 - BVerwG 10 C 27.07 (German Version)

Asylum Procedure Act Section 73 (1), (2a) and (7)
Residence Act Section 52 (1) sentence 1 No. 4, Section 60 (1), (2), (3) and (7), Section 60a (1) sentence 1
Aliens Act Section 51 (1)
Basic Law Article 16a (1)
GRC Article 1 A No. 2, Article 1 C No. 5 and 6
Act on Administrative Law Procedure Section 48 (4), Section 49 (2) sentence 2
EC Treaty Article 68 (1), Article 234 (1) and (3)
VCLT Article 31 (1) and (3) b
Directive 2004/83/EC Article 2 c, Article 4 (4), Article 7 (1), Article 11 (1) e and f and (2), Article 14 (1) and 2, Article 15, 18, 38 (1) sentence 1, Article 39

Headwords:
Withdrawal of recognition of refugee status (Iraq); preliminary ruling; overreaching implementation; existing recognition; discretion; immediacy; year's grace period for withdrawal; fear of persecution; new, different persecution; actor of protection; subsidiary protection; protection from deportation; prior persecution; standard for prognosis; easier standard of proof.

Headnote:
Request for a preliminary ruling from the European Court of Justice to clarify the requirements for cessation of refugee status under Article 11 (1) e of Directive 2004/83/EC.

Decision of the 10th Division of 7 February 2008 - BVerwG 10 C 33.07 (German Version)

Residence Act Section 25 (3), Section 60 (1), (7) Sentence 2 and 3, (11), Section 60a
Directive 2004/83/EC Art. 2 Letter b, Art. 8, 15 Letter c, Art. 17, 18
Geneva Conventions of 12 August 1949 Art. 3
Additional Protocol I of 8 June 1977 Art. 51
Additional Protocol II of 8 June 1977 Art. 1, 13

Headwords:
Protection from deportation because of internal armed conflict (Iraq); indiscriminate violence; serious and individual threat; substantial individual danger; subsidiary protection; international humanitarian law; matter at issue in protection against deportation under European and German law.

Headnotes:
1. Since the Directive Implementation Act has gone into force, an application for an order to find a prohibition on deportation under Section 60 (2) through (7) of the Residence Act, with reference to the country of origin, can be pertinently interpreted in asylum proceedings to the effect that a finding of a prohibition on deportation under Section 60 (2), (3) or (7) Sentence 2 of the Residence Act is to be sought first, and as an alternative, a finding of a prohibition on deportation is to be sought under Section 60 (5) or (7) Sentence 1 of the Residence Act.

2. The concept of international or internal armed conflict in Section 60 (7) Sentence 2 of the Residence Act and Art. 15 Letter c of Directive 2004/83/EC (known as the 'Qualification Directive') is to be construed taking international humanitarian law into account (see in particular the four Geneva Conventions on International Humanitarian Law of 12 August 1949 and Additional Protocol II of 8 June 1977).

3. An internal armed conflict within the meaning of Section 60 (7) Sentence 2 of the Residence Act and Art. 15 Letter c of Directive 2004/83/EC need not extend to the entire territory of the country.

4. The provision of Section 60 (7) Sentence 3 of the Residence Act, relegating foreigners seeking protection from deportation to suspensions of deportation by order of the foreigners authorities, is to be construed, in keeping with the Directive, as not applying to those cases in which the conditions for granting subsidiary protection under Art. 15 Letter c of Directive 2004/83/EC are met.

Decision of the 10th Division of 24 June 2008 - BVerwG 10 C 43.07 (German Version)

Act Implementing the Convention on the Reduction of Statelessness Article 2
Asylum Procedure Act Section 3 (1), Section 26 (4)
Residence Act Section 60 (1) Sentences 1 and 5, (2) through (7)
Universal Declaration of Human Rights Article 15
Geneva Convention on Refugees Article 1A (2)
Directive 2004/83/EC Article 2 c, Article 4 (3) c, e, Article 9 (1a)
Convention Relating to the Status of Stateless Persons Article 1 (1)

Headwords:
Deprivation of citizenship; administrative deprivation of citizenship; deprivation of citizenship relevant to asylum; refusal of entry; statelessness; de facto state-lessness; de jure statelessness; habitual residence; lawful residence; internal protection; accessibility of alternative refuge.

Headnote:
1. Deprivation of nationality may be a serious violation of basic human rights within the meaning of Article 9 (1) a of Directive 2004/83/EC of 29 April 2004 (known as the 'Qualification Directive').

2. In assessing the severity of the violation of rights caused by a deprivation of citizenship, under Article 4 (3) c of the Qualification Directive the individual posi-tion and personal circumstances of the person concerned must also be taken into account.

3. A person is stateless within the meaning of Section 3 (1) of the Asylum Pro-cedure Act if no state views him or her as a national under its own law, i.e., a de jure stateless person. For de facto stateless persons, therefore, a threat of per-secution must be examined with reference to the state of their de jure national-ity.

4. The habitual residence of a stateless person under Section 3 (1) of the Asy-lum Procedure Act need not be lawful. It is sufficient if the stateless person fo-cused his or her life in the country, and therefore did not merely transiently spend time there, and the competent authorities did not initiate measures to terminate his residence.

Decision of the 10th Division Division of 26 February 2009 Federal Administrative Court 10 C 50.07 (German Version)

Asylum; refugee status; Qualification Directive; act of persecution; reason for persecution; severe violation of human rights; freedom of religion; religious subsistence level; religious activity in public; physical freedom; alternative refuge in cases of emigration; conditions created by individual after leaving country of origin.

Headnote:
1. Even under Directive 2004/83/EC, not every restriction of religious freedom results in persecution within the meaning of asylum law. Whether a measure is tied to religion as a reason for persecution proceeds from Article 10 of the Directive; but what right is protected, and to what extent, proceeds from Article 9 of the Directive.

 2. Interference in the core area of religious freedom represents a severe violation of a basic human right within the meaning of Article 9 (1) of the Directive. Whether, and under what conditions, religious activity in public is also included here, is a matter of uncertainty under Community law that must ultimately be clarified by the European Court of Justice.

 Decision of the 10th Division Division of 5 March 2009 Federal Administrative Court 10 C 51.07 (German Version)

Asylum Procedure Act Section 3 (1), (2) Sentence 1 No. 1 and 2, (2) Sentence 2
Residence Act Section 60 (1) Sentence 1
GCR Article 1 F
ICC Statute Article 8, Article 9, Article 25, Article 30, Article 31
Code of Administrative Court Procedure Section 108 (1) Sentence 1, Section 137 (2), Section 144 (3) Sentence 1 No. 2
Directive 2004/83/EC Article 4 (4), Article 12 (2)
Geneva Conventions of 12 August 1949 Article 3
Additional Protocol I of 8 June 1977 Article 37, 44
Additional Protocol II of 8 June 1977 Article 13

Headwords:
Reason for exclusion; standard of proof; refugee status; functional connection; internal armed conflict; fighter; combatant; war crime; treacherous killing; non-political crime; separatism; terrorism; international criminal law; civilian.

Headnote:
1. A civilian may be the perpetrator of a war crime within the meaning of Section 3 (2) Sentence 1 No. 1 of the Asylum Procedure Act in conjunction with Article 8 (2) of the ICC Statute. But there must be a functional connection between the act and the armed conflict. A connection between the perpetrator and one of the parties to the conflict is not needed.

2. In an internal armed conflict, it is possible to commit war crimes not only against the civilian population but also against combatants of the adversary party.

3. A prerequisite for the war crime of treacherous killing of a combatant under Article 8 (2) (e) (ix) of the ICC Statute is that the perpetrator must have deceived the adversary as to the existence of a situation of protection under international law.

4. The question of whether a serious crime of a non-political nature within the meaning of Section 3 (2) Sentence 1 No. 2 of the Asylum Procedure Act exists depends crucially on the perpetrator's actual motivation.

Decision of the 10th Division of 16 February 2010 - BVerwG 10 C 7.09 (German Version)

Asylum Procedure Act Section 3 (1), (2) Sentence 1 No. 1 and 2, (2) Sentence 2
Aliens Act 1990 Section 51 (3) Sentence 2
Residence Act Section 60 (8) Sentence 2 (old version)
Residence Act Section 60 (1) Sentence 1
Charter of the International Military Tribunal of 8 August 1945 Article VI
GCR Article 1 F, Article 33 (2)
Rome Statute Article 7, Article 8, Article 25, Article 27, Article 28
Code of Administrative Court Procedure Section 108 (1), Section 137 (2), Section 144 (3) Sentence 1 No. 2
Directive 2004/83/EC Article 4 (4), Article 8 (1), Article 12 (2)
Universal Declaration of Human Rights Article 14 (2)

Headwords:
Reason for exclusion; standard of proof; refugee status; international humanitarian law; internal armed conflict; combatant; war crime; non-political crime; separatism; terrorism; crime against humanity; insufficient findings of fact; international criminal law.

Headnote:
1. At the present time, whether war crimes or crimes against humanity within the meaning of Section 3 (2) Sentence 1 No. 1 of the Asylum Procedure Act exist must be determined primarily according to the elements of these crimes formulated in the Rome Statute of the International Criminal Court of 17 July 1998.

2. In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatant adversaries.

3. If combat operations by combatants in an internal armed conflict are not covered by Section 3 (2) Sentence 1 No. 1 of the Asylum Procedure Act, as a rule they will also not constitute a serious non-political crime as a reason for exclusion (No. 2).

Decision of the 10th Division of 24 November 2009 - Case No.: BVerwG 10 C 24.08

Asylum Procedure Act Section 3 (1), Section 77
Residence Act Section 60 (1)
Basic Law Article 16a
Directive 2004/83/EC Article 4 (4), Article 8, Article 9, Article 10

Headwords:
Recognition of refugee status; act of persecution; targeted act; necessary medical treatment; post-traumatic stress disorder; denial of registration; violation of human rights; previous persecution; internal flight alternative; internal protection; time of emigration; facilitated standard of proof; standard of proof.

Headnote:
1. The concept of an act of persecution within the meaning of Directive 2004/83/EC presupposes a targeted violation of a legal right protected under Article 9 (1) of the Directive.

2. Under the new status of the law, with regard to Section 60 (1) Sentence 5 of the Residence Act in conjunction with Article 4 (4) of Directive 2004/83/EC, previous persecution under the terms of refugee law can no longer be denied solely because a flight alternative existed in another part of the country of origin at the time of emigration.

Decision of the Tenth Division of 19 January 2009 - Case No.: BVerwG 10 C 52.07

Asylum Procedure Act Section 3 (1), (2)
Residence Act Section 60 (1) through (8)
Aliens Act Section 51 (1) and (3)
ECHR Article 3
Basic Law Article 16a
GRC Article 1 F (b) and (c), Article 33 (2)
EC Treaty Article 68 (1), Article 234 (1) and (3)
Directive 2004/83/EC Articles 3, 4 (4), Articles 9, 12 (2) and (3)
UN Charter Articles 24, 25

Headwords:
Asylum; recognition of refugee status; prohibition on refoulement; exclusion; terrorism; support; DHKP/C; serious non-political crime; purposes and princi-ples of the United Nations; preliminary ruling; ineligibility for asylum; danger of reoffence; proportionality; protection from deportation; priority of application.

Headnote:
Requests for preliminary rulings from the European Court of Justice to clarify the prerequisites for and effects of an exclusion under Article 12 (2) b and c of Directive 2004/83/EC.

Decision of the 10th Division of 14 October 2008 BVerwG 10 C 48.07 (English Version)

Facilitated standard of proof; reversal of burden of proof; refugee protection for families; recognition of refugee status; refugee status; internal protection; internal flight alternative; nationality; political conviction; prognosis; race; prevention of terrorism; act of persecution; reason for persecution; prognosis of persecution; previous persecution.

Headnote:
1. An asylum applicant who has been previously persecuted within the meaning of Section 60 (1) Sentence 5 of the Residence Act in conjunction with Article 4 (4) of Directive 2004/83/EC also benefits from the facilitated standard of proof under the latter provision in the examination of whether he has no well-founded fear of persecution within the territory of an internal alternative for protection under Article 8 (1) of Directive 2004/83/EC.

2. a) A final and absolute obligation to recognise the status of the originally entitled individual, imposed by the court on the Federal Office for Migration and Refugees, is equivalent to an incontestable recognition of the status of the originally entitled individual, as necessary under Section 26 (1) No. 1 of the Asylum Procedure Act in order to grant family asylum and refugee protection for families to that person's spouse (see Section 26 (4) of the Asylum Procedure Act).
b) By exception, this requirement is also sufficiently met in ultimate appeal proceedings if the Federal Administrative Court simultaneously renders a final and absolute judgment on the spouses' asylum applications, and the obligation to recognise the status of the originally entitled individual becomes final and absolute simultaneously with the decision on the asylum application of the spouse.

Decision of the Tenth Division of 5 May 2009 - Federal Administrative Court
10 C 21.08 (German Version)