The following preconditions must be met before refugee protection can be afforded:
In accordance with section 3 subs. 1 of the Asylum Procedure Act (AsylVfG), a person is recognised as a refugee if, out of justified fear of persecution because of his/her
- political conviction, or
- membership of a specific social group,
he/she is outside the country of origin, and is unable to call on the protection of that country or does not wish to take it up because of this fear.
It does not matter whether the applicant actually has the characteristics on the basis of which they are being persecuted. What matters is that their persecutor believes that they have these characteristics.
This persecution may be perpetrated by the State, by parties or organisations that control the State or considerable parts of the territory of the State (state-like players) or by non-state players, if state or state-like players, including international organisations, are proven to not be able or willing to offer protection from the threat of persecution in that country.
The following count as persecution:
- acts that are so serious because of their type or repeated nature that they represent a severe violation of basic human rights, in particular rights from which no deviation is permitted in accordance with Article 15 para. 2 of the European Convention on Human Rights (in particular Article 3, torture or inhuman or degrading treatment or punishment)
- various measures that in themselves do not represent a serious violation of basic human rights but, when considered in combination, are so serious that a person is affected by them in a similar way.
Examples of acts that may count as persecution:
- using physical or mental force, including sexual violence,
- legal, administrative, police and/or judicial measures that as such are discriminatory or are applied in a discriminatory way,
- disproportionate or discriminatory prosecution or punishment,
- denyial of judicial protection, resulting in disproportionate or discriminatory punishment,
- acts that are associated with gender or are directed against children.