Germany / Federal Administrative Court / BVerwG 10 C 15.12 Afghan citizen v Federal Office for Migration and Refugees

Key facts of the case:

The plaintiff is an Afghan citizen who entered Germany in 2009. He claimed to have no means of existence in Afghanistan and that he feared discrimination that his ethnic group suffers from in his home country. His application for asylum was dismissed. He initiated legal proceedings but was only partially successful at first instance. The Karlsruhe Administrative Court obligated the defendant to determine a prohibition of deportation to Afghanistan in accordance with section 60 (7) sentence 2 of the German Residence Act (Aufenthaltsgesetz) but rejected the claim apart from that. The Mannheim Higher Administrative Court granted the defendant’s appeal and reversed the judgment completely. The plaintiff’s appeal was successful. The Federal Administrative Court criticized that the Mannheim Higher Administrative Court applied the region of Kabul to determine whether there is an armed conflict at the destination of the plaintiff and did not apply the native region of the plaintiff. The Federal Administrative Court remanded the judgment.

Paragraphs referring to EU Charter: 

 

Margin number 22: “According to Section 60 (2) of the German Residence Act (Aufenthaltsgesetz), a foreigner must not be deported to a state in which the foreigner is facing a concrete threat of torture, inhumane or humiliating treatment or punishment. With this prohibition of deportation, Article 15 letter b of the EU Directive 2004/83/EG (now: Art. 15 letter b of the EU Directive 2011/95/EU) is transacted. While drafting the EU Directive the European Commission orientated itself on Art. 3 of the ECHR (BGBl 1952 II S. 685) and in this context explicitly referred to the jurisdiction of the European Court of Human Rights (Proposal of the Commission for a Directive of the Council about minimum standards for the recognition and the status of members of third countries and stateless persons as refugees or as persons who need other international protection, September 12th 2001 KOM <2001> 510 definite S. 6, 30). The jurisdiction of the European Court of Human Rights regarding Article 3 ECHR also has to be considered through Article 19 (2) of the Charter (ABI EU 2010 Nr. C 83, 389) while interpreting Section 60 (2) of the German Residence Act (Aufenthaltsgesetz). Accordingly, nobody must be deported to a state where he is facing a serious risk of torture or other inhumane or humiliating punishment or treatment. According to Article 51 (1) of the Charter, this also applies to the execution of the law of the European Union by the member states. By duly considering the annotations (ABI EU 2007 Nr. C 303 S. 17 = EuGRZ 2008, 92), which are to be considered according to Article 52 (7) of the Charter while interpreting it, the jurisdiction of the European Court of Human Rights regarding Article 3 of the ECHR concerning cases of extradition, expulsion or deportation is adopted through the application of Article 19 (2) of the Charter (judgment of April 27th 2010, l.c. margin number 15 and 17).”

Deciding body (original language): 
Bundesverwaltungsgericht
Language: 
German