Change of status: criminal becomes refugee

The Federal Office for Migration must recognize a Kurdistan Workers’ Party supporter persecuted in Turkey as a political refugee

Kurdish demonstrators march through downtown Hanover demanding freedom for Abdullah ocalan, the imprisoned leader of the Kurdistan Workers’ Party PKK Photo: Alexander Korner/dpa

This is a ruling of arguably fundamental importance: a Kurd who fled Turkey, supported the Kurdistan Workers’ Party PKK and was persecuted in his homeland because of it, must be granted refugee status by the Federal Office for Migration and Refugees (Bamf). This was decided by the Lower Saxony Higher Administrative Court in Luneburg on Monday.

"The plaintiff is threatened with serious human rights violations if he returns to Turkey in connection with the criminal proceedings against him for membership of the PKK," the Luneburg judges said in justifying their ruling.

The 30-year-old Kurd had studied economics at the Turkish university in the city of Elazig and had been charged before a criminal court in Malatya, Turkey, with numerous activities for the PKK and other Kurdish organizations before fleeing to Germany.

The Federal Office for Migration rejected his asylum application as unfounded in January 2012. He was given a deadline to leave the country; if he did not leave voluntarily, he was threatened with deportation. He took legal action against this before the Hanover Administrative Court. The court rejected his claim on the grounds that "membership in a terrorist organization" such as the PKK is a "criminal offense" in Turkey. Therefore, prosecution in Turkey was not for political reasons. It could not be ruled out, the judges said at the time, that the man wanted in Turkey would be arrested and subjected to torture after his return. But not because of his "political convictions and ethnicity," but "because of the criminal proceedings initiated for terrorist activities for the PKK."

The 30-year-old’s lawyer, Paulo Dias from Hanover, appealed against this decision. And the Higher Administrative Court now ruled that the Federal Office for Migration was acting unlawfully in denying the Kurd the rights of a refugee. This violates his rights.

The Geneva Convention of 1951 is still decisive, which is also reflected in the current German Asylum Procedure Acceleration Act of October 2015 and the Act on the Introduction of Accelerated Asylum Procedures of 2016. Accordingly, a foreigner is a refugee within the meaning of the Geneva Convention "if, owing to a well-founded fear of persecution on account of his race, religion, nationality, political convictions or membership of certain social groups, he is outside the country of which he is a national and whose protection he cannot avail himself of," according to the higher administrative court judges. This was not changed by the new asylum acceleration laws, which are intended to facilitate the expulsion of criminal foreigners or to exclude the refugee recognition of criminal asylum seekers.

There is always an obstacle to the expulsion of persons to Turkey if there is a "persecution-relevant risk of return" against these persons, as in this case, or if criminal proceedings with a political background are pending against these persons in their country of origin or they have come into the sights of the Turkish security authorities because they are regarded as potential supporters of the PKK.

From the ruling of the OVG

"Torture and ill-treatment by state forces still occur"

"Torture and ill-treatment by state forces still occur without the Turkish state having succeeded in effectively preventing it," the judges said. The Higher Administrative Court concluded that the plaintiff was "considerably likely to suffer ill-treatment or torture by security forces of the Turkish state." For attorney Dias the judgement is an indication for the fact that "even the higher administrative court considers the situation in Turkey politically exaggerated".

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