Administrative Court (VG) - Wiesbaden, Judgment as of 3/14/2011
File number 3 K 1465/09.WI.A

Summary

In this judgment, the Administrative Court held that the German Federal Office for Migration and Refugees (BAMF) had to recognize the female plaintiff as a refugee and was not allowed to deport her.

The female plaintiff was a Nigerian national who had first come to the attention of the authorities in controls carried out in brothels in the Netherlands and then in Germany. At the time when she was supposed to be deported from Germany to the Netherlands, she filed an application for asylum claiming that she had been brought to Europe as a victim of human trafficking. If she returned to Nigeria, she claimed that she would be in danger of being persecuted by members of the human trafficking ring. The woman for whom the plaintiff had had to work had already, during a temporary absence of the plaintiff, put pressure on the plaintiff via her family.

Although the BAMF recognized a justification for a prohibition of deportation to Nigeria on account of there being a danger that the plaintiff in Nigeria could be forced back into prostitution or could even be killed, they nevertheless refused to recognize that there was an entitlement to asylum. The BAMF was of the opinion that the plaintiff did not qualify as a refugee because she was not being persecuted on account of her membership in a “social group”. Section 60 of the German Residence Act (AufenthG) lays down which persons are entitled to a prohibition of deportation. According to section 60, no one may be deported to a state in which their life or liberty is endangered on account of their membership in a certain social group. The court held that a persecution on account of membership in a certain social group can also be found pursuant to section 60 AufenthG if the danger to the person’s life, physical integrity, or liberty is linked solely to gender.

The Administrative Court disagreed with the BAMF and held that there was a danger of persecution on account of membership in a “social group”. Although the plaintiff was not in danger of persecution solely on the basis of her gender, she was on account of her membership in the group of human trafficking victims that return to Nigeria. This group constitutes a group that is outwardly recognizable and that is excluded from society within the meaning of the so-called Qualification Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted).

Because the persecution was not being committed by the Nigerian state but by a criminal ring of human traffickers, the court had to determine whether the state was unable to provide the victims with adequate protection. Although it was recognized that measures were being taken against human trafficking in Nigeria, they were considered inadequate, as had been concluded by the refugee aid organization “Schweizerische Flüchtlingshilfe” in its Nigeria Update of March 2010. Victims of human trafficking are especially stigmatized as prostitutes and are not being protected by the - partially corrupt - police.

There are no inner-state means of escape, because as a single woman the plaintiff cannot move to the Muslim north and in the south she would be exposed to a danger of sexual assaults. There was also the danger that the plaintiff would have to live below the minimum subsistence level due to the poverty in Nigeria.

The court therefore concluded that the requirements for asylum entitlement and for the prohibition of deportation pursuant to section 60 (1) AufenthG had been satisfied.

Decision in full text: