Ferderal Administrativ Court - Decision 10 C 33.07 from 7 February 2008

Pursuant to Article 234 (1) and (3) and Article 68 (1) of the EC Treaty, a preliminary ruling is sought from the European Court of Justice on the following questions:

1. Is Article 11 (1) e of Council Directive 2004/83/EC of 29 April 2004 to be construed as indicating that – in deviation from Article 1 C No. 5 Sentence 2 of the Convention Relating to the Status of Refugees of 28 July 1951 (the Geneva Refugee Convention) – refugee status expires as soon as the refugee’s well-founded fear of persecution within the meaning of Article 2 c of the Directive, because of which that status was recognised, no longer exists and the individual also need not fear persecution for other reasons, within the meaning of Article 2 c of the Directive?

2. In the event that Question 1 is answered in the negative: Does the cessation of refugee status pursuant to Article 11 (1) e of the Directive furthermore presuppose that in the country of which the refugee is a citizen,

a) An actor of protection within the meaning of Article 7 (1) of the Directive is present, and in this case is it sufficient if protection can be provided only with the assistance of multi-national troops,

b) The refugee is not threatened with serious harm within the meaning of Article 15 of the Directive that results in the accordance of subsidiary protection under Article 18 of the Directive, and/or

c) The security situation is stable, and general living conditions ensure the minimum basis for a livelihood?

3. In a situation in which the previous conditions under which the individual was recognised as a refugee no longer exist, should new circumstances that establish persecution of a different nature

a) Be measured by the standard of probability that applies for the recognition of refugees, or should another standard be applied in the individual’s favour,

b) Be assessed by applying the easier standard of evidence under Article 4 (4) of the Directive?

Federal Administrativ Court Decision of the 10th Division of 24 June 2008 – BVerwG 10 C 43.07

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.