Herrn
Dr. Albert Schmid
Präsident des Bundesamtes für Migration und Flüchtlinge
90343 Nürnberg

Dear Dr. Schmid:

Human Rights Watch writes to express concern over Germany's policy of revoking refugee status for more than 18,000 Iraqi refugees. The revocation is based on changed country conditions in Iraq, the notion that people who were recognized as refugees prior to the fall of the Ba`thist regime in 2003 should no longer fear persecution in Iraq. While changed country conditions are, indeed, a basis for cessation of refugee status, such changes must be fundamental and durable and need to have eliminated the original causes of a refugee’s forced displacement. Ongoing armed conflict, widespread human rights abuses, including persecution targeted against particular groups, and unstable country conditions in Iraq dictate that Germany not revoke refugee status for Iraqi refugees and scrupulously respect the principle of nonrefoulement.

In addition, Human Rights Watch believes that any Iraqi deserving of subsidiary protection should be accorded rights and benefits commensurate with the European 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 (hereafter referred to as the Qualification Directive or Directive).

1. Revocation and denial of refugee status

Since 2003, Germany has revoked asylum status for more than 18,000 Iraqis. The German Federal Office for Refugees and Migration (BAMF), in letters to Iraqi refugees whose refugee status the Office wants to revoke, states: "Die politische Situation im Irak hat sich (…) grundsätzlich verändert. (…) Es sind keine Anhaltspunkte dafür ersichtlich, dass von der neuen irakischen Regierung politische Verfolgung ausgeht oder ausgehen wird." ("The political situation in Iraq has fundamentally changed. There are no indications that the new Iraqi government is engaging or will engage in political persecution.") It strikes us as a sweeping non sequitur to add to the obvious statement that the political situation has fundamentally changed the assertion that there are no indications that the new Iraqi government is or will be guilty of persecution. The new Iraqi government has repeatedly been found to torture detainees, to ignore basic rule-of-law principles, and to discriminate in its treatment of its citizens based on religious identity. Persecution of Iraqis on the basis of their identities, associations, and beliefs, by non-state actors in Iraq—which Germany now recognizes as possible agents of persecution—has also been widely documented.

Although there has been a fundamental regime change in Iraq since 2003, we are certain that new claims for protection have arisen due to widespread violence and human rights abuses currently ongoing in Iraq, as is indicated by nearly 2 million internally displaced persons, up to 2 million Iraqi refugees in the neighboring countries, and Iraqis as the largest number of asylum seekers in the industrialized West. Under the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status’s interpretation of the cessation clause (Article 1.C) of the1951 Convention relating to the Status of Refugees (hereinafter referred to as the Convention) cessation of refugee status can only be applied where the changes in country conditions have been both fundamental and durable. The Handbook says, “A mere—possibly transitory—change in the facts surrounding the individual refugee’s fear, which does not entail major changes of circumstances, is not sufficient to make the clause applicable.” Given the high continuing state of violence and instability in Iraq, it would not be possible at this time to argue convincingly that the changes that have occurred since 2003 are durable. If German law provides for revocation of refugee status without accounting for the durability of change in country conditions, then it does not conform to international standards. As a result, Iraqi refugees will be left vulnerable and subject to return to instable country conditions, despite being granted lawful protection under the Convention.

If the BAMF continues to initiate revocation procedures against Iraqi refugees on the basis of changed country conditions in Iraq, it should, at a minimum, give them the individualized opportunity to submit de novo refugee claims in light of current conditions. It should also give all of the more than 18,000 Iraqis whose refugee status has been revoked the opportunity to make new refugee claims based fears of persecution or serious harm arising from the current human rights situation in Iraq.

Refugee status should not be revoked, and protection should not be denied, on the basis of an internal flight alternative. Although conditions in the northern governorates (Sulaymaniyah, Erbil, and Dohuk) in Iraq are relatively stable compared with the rest of the country, the situation remains unpredictable and tense even in those areas. UNHCR warns that conflict prevailing in other parts of the country might spill over. This month, Human Rights Watch published a report, "Caught in the Whirlwind: Torture and Denial of Due Process by the Kurdistan Security Forces," which documents that serious human rights violations continue to take place in the north.

It is unreasonable to expect an Iraqi from southern or central Iraq to relocate to the north since, in addition to legal hurdles to obtaining residence, they face serious obstacles in obtaining protection from persecution. In addition, any determination of an asylum claim by an Iraqi from the northern governorates should take into account the individual merits of the claim and a situation which may rapidly change for the worse. If repatriation to the north is being considered, UNHCR recommends that countries should keep in the mind: 1) the destabilizing effect of large numbers of individuals returning to a fragile area; 2) the existence of a reasonable opportunity for durable re-integration; and 3) the limited absorptive capacities of the northern governorates. In light of these considerations, as well as the negative message it would send countries of first asylum, Human Rights Watch urges Germany not to return Iraqi refugees and asylum seekers currently present in the country, as well as any incoming Iraqis seeking protection, to any part of Iraq.

2. Compliance with EC Directive 2004/83/EC, and adequate rights for those given "Duldung" (or "tolerated") status

Any subsidiary protection granted to refugees whose status has been revoked, and to incoming Iraqis, should be in line with the provisions of the Qualification Directive.

The Qualification Directive requires that member states give people subsidiary protection from deportation to situations of "armed conflict" where a "serious and individual threat to a civilian's life or person by reason of indiscriminate violence" exists (Art 15(c)). Any German law transposing the Qualification Directive should retain this essential language. Currently, German law treats protection against deportation only as a discretionary decision when the threat to the person arises from "indiscriminate violence." We understand that a draft bill to transpose the Qualification Directive, currently under consideration, retains the discretionary aspect of the decision to grant protection from deportation into areas of indiscriminate violence. Because the draft bill makes protection discretionary, people needing protection from return to indiscriminate violence will not be adequately protected against forced return, as is their right according to the Qualification Directive.

Rights granted to those who are given subsidiary protection should comply with the Qualification Directive, including the right to work, freedom of movement, access to education, and other social benefits. We are especially concerned that people with Duldung status cannot work for a full year after they are granted status. Germany's current policy with respect to Duldung status beneficiaries does not comply with the Qualification Directive, which calls for Member States to "authorize beneficiaries of subsidiary protection status to engage in employed or self-employed activities…immediately after the subsidiary protection has been granted," (Art 26.3, emphasis added). While we are encouraged by the recent efforts of the government to grant those who hold Duldung status a path to permanent residency, we note that only a fraction of the group will actually be able to meet the criteria of regular employment because of work restrictions.

In addition, we understand that Duldung status beneficiaries are not allowed to move freely within Germany, and that their ability to settle down within Germany is confined to certain districts or Lands. The Qualification Directive states that Member States should allow freedom of movement for those with subsidiary protection under the same conditions as those for foreign nationals legally present in the country (Art 32). In addition, while specific provisions might vary with states, those with Duldung status are often denied any public benefits. As part of the March 2007 agreement regarding Duldung status, the amount of public assistance provided by German states was reduced even further. Combined with work restrictions, low public benefits threaten to impoverish people and force them into illegal channels in order to earn a livelihood.

In closing, we urge Germany to be very conscious of the signals that revoking refugee status will send to other countries, in particular those countries in the Middle East that are not signatories to the Refugee Convention and where Iraqi refugees and asylum seekers are at very great risk of being returned to persecution. At a time of a continuing refugee crisis, where the UN High Commissioner for Refugees (UNHCR) has called for the international community to share the burden of Iraq's neighboring nations, it sends the wrong message for Germany to revoke the refugee status of those Iraqis present within its borders. Such a move on the part of the German government has serious repercussions for refugees in Jordan, Syria, Lebanon and other states in the region where their legal status is precarious, at best, and the danger of push-backs at the border and summary deportations is extremely high.

Sincerely,

Bill Frelick
Refugee Policy Director

Holly Cartner
Europe/Central Asia Director