Ferderal Administrativ Court - Decision 10 C 33.07

Geschrieben von: Dr. Klaus Dienelt

The Bundesverwaltungsgericht (BVerwG), which is the Federal Republic of Germany's supreme administrative court, decided that the European Court of Justice (ECJ) has to prove the conformity of parts of the domestic asylum law with Article 11 (1) Qualification Directive.

Article 11(1)(e) establishes that a third country national or a stateless person shall cease to be a refugee, if he or she “can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality”.

The question was referred to the ECJ in relation with three cases involving Iraqi nationals. The applicants had been recognised as refugees in Germany but had been deprived of the refugee status in 2005 consequently to the fall of Saddam Hussein’s regime. The Court considered in this respect that the reasons to fear persecution had ceased to exist and there were no indications of the extistence of other reasons leading to a well-founded fear of persecution.

The Federal Administrative Court in Leipzig has asked the ECJ to clarify if the withdrawal of refugee status is possible in case the reasons for granting it have ceased to exist and in case the applicants, if returned to their home country, would not fear persecution for other reasons. The Federal Administrative Court also wants the ECJ to clarify which situation needs to be in place in the country of orgin to ensure adequate protection for the applicants so to allow the withdrawal of the refugee status.

The Court asked the ECJ 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?

Link to the decision of the Federal Administrativ Court

http://www.migrationsrecht.net/component/option,com_docman/Itemid,127/task,cat_view/gid,161/