The Higher Administrative Court for the state of Hesse issued three judgements on 6 June 2017 requiring the Federal Republic of Germany to grant refugee protection status to three Syrian nationals.
The three men came from the Syrian city of Homs or the province of Dara’a and entered Germany in October and November 2015. The Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) issued the men its decision about their asylum applications in July, August and November 2016. The asylum seekers’ applications for refugee protection status were denied and instead they were granted another form of protection under EU and German law known as ‘subsidiary protection’ (subsidiären Schutz). This form of protection does not entitle holders of this status to the full benefits that formally recognized refugees receive under the law, such as the right to family reunification.
The three asylum seekers appealed the decision by filing actions at the Administrative Court in Kassel in the state of Hesse. Their objective was to have the government grant them full refugee protection status. Their appeals were based on the argument that it is very likely they will face political persecution upon returning to Syria for having left the country illegally, for having submitted an asylum application and for their lengthy stay abroad. Had they not left Syria, two of the Syrians would have had to continue their service in the Syrian army, which meant that upon their eventual return to Syria, they would face the threat of being forced to re-join the army. The other asylum seeker even faces the death penalty for being a conscientious objector.
The Higher Administrative Court for the state of Hesse went against another decision made by the Higher Administrative Court for the state of North Rhine-Westphalia in Münster, which had ruled in an appeal hearing on 4 May 2017 that a twenty year old Syrian man should not be awarded refugee protection status because of his conscientious objection to serving in the Syrian military.
The Administrative Court of Kassel ruled in favour of the three plaintiffs from Syria in the first instance in November 2016 and required the Federal Republic of Germany to grant the three Syrian nationals refugee protection status. This court of first instance justified its decision saying that in view of the ongoing escalation of the political conflict and the intensity of the military conflict in Syria, it can be assumed that the level of risk has continued to increase significantly. Moreover, the court believed as a general rule, the Syrian state considers leaving the country illegally, residing in a western European country and applying for asylum as a means of expressing critical views about the regime.
The Federal Republic of Germany, or to be precise, the Federal Office for Migration and Refugees contested these court decisions by filing appeals with the Higher Administrative Court for the state of Hesse, which reviewed the lower court’s decision.
The Federal Office for Migration and Refugees is of the opinion that there is not any validated knowledge indicating that as a general rule, when Syrians return to the country, they will be accused of having worked for opposition forces, regardless of their special personal circumstances. For this reason, the Federal Office for Migration and Refugees was of the opinion that interrogations, which may also include mistreatment, are carried out by the Syrian authorities based on indications related to prosecutable offences. They also believe the information currently available does not show either that submitting an asylum application or residing in a foreign country are by themselves a reason to assume that a person faces what is considered under asylum law as a significant risk of political persecution, which entails imprisonment and acts of retaliation carried out by the Syrian public authorities.
The Higher Administrative Court in Hesse rejected the appeals filed by the Federal Office for Migration and Refugees. Unlike the Federal Office for Migration and Refugees, the higher court believed the plaintiffs’ fear of political persecution upon returning to Syria is justified. According to the information currently available on the situation in the Syrian Arab Republic from organisations, such as Germany’s Federal Foreign Office, the United Nations High Commissioner for Refugees (UNHCR) and the Swiss Refugee Council, it was highly likely that the plaintiffs would face imprisonment, torture, and thus, the threat of political persecution if they returned to Syria either on a flight to Damascus or by another means of official entry into the country. These organisations believed the men were at risk of facing political persecution because they came from regions in the country which are currently controlled or which were previously controlled by rebel forces. Additionally, they were presumed to be sympathizers of the opposition by the Syrian authorities because they had evaded the completion of their compulsory military service.
An appeal on points of law against these judgements was not permitted. It is possible for a complaint against the non-admission of an appeal on points of law to be filed, which will be decided by the Federal Administrative Court (Bundesverwaltungsgericht) in Leipzig.