Germany - VG Trier, 7 October 2016, 1 K 5093/16.TR

Facts:

The claimant of Christian faith, his wife and their two children fled  Aleppo via the “Balkan route”. The family’s house, the claimant’s shop and the children’s school were all hit by rockets fired by the opposition. Upon arrival to Germany, the family was granted subsidiary protection by the authorities. However, a request for the more generous protection as refugees was denied, given the absence of legally relevant acts of persecution and “connecting features”. The claimants subsequently requested refugee status. They argued that, as a result of fleeing Syria, staying in a Western foreign country and their application for asylum, the Syrian government would accuse them of disloyalty upon their return to the country. A politically motivated persecution would already consist in the threat that security forces could arrest the claimants upon arrival, questioning them about the overseas connections of the opposition and  involving probable violations of human rights culminating in torture.

Decision & reasoning:

The defendant’s absence before the court did not prevent the court from making a decision. The defendant had been lawfully summoned and had been made aware of a decision being possible despite her absence in accordance with s. 102 ss. 2 VwGO (Code of Administrative Court Procedure). 

The court could not find pre-persecution as a reason for the claimants’ emigration from Syria within the meaning of s. 3 ss. 1 AsylG (Asylum Law). In this respect, the claimants’ submission of the war situation generally, the endangered life and health of the family as well as a disappeared neighbour of Christian faith are to be seen as too unspecific. Therefore, initially, as per s. 15 ss.1 and s. 25 ss. 1 and ss. 2 AsylG, the defendant was rightfully denied recognition of refugee status on the grounds of the absence of a substantiated reason (s. 3b AsylG) or act (s. 3a AsylG) of persecution.

However, the defendant’s notice is unlawful, having exclusively found the non-existence of the refugee status on the basis of lacking pre-persecution without taking account of post-flight circumstances within the meaning of s. 28 AsylG. Therefore, the chamber concluded that, within the meaning of s. 3a ss. 1 and s. 3b ss. 1 No. 5 AsylG,  “from the point of view of a prudently and reasonably thinking man and after consideration of all known circumstances, upon their hypothetical return to Syria, in any event, [the claimants were threatened by] persecution due to the political opinion attributed to [them]”. This finding results from previous decisions (VG (Administrative Court) Trier, judgement of 14th June 2016 – 1 K 1105/16.TR; VG Trier, judgement of 16th June 2016 - 1 K 1576/16.TR), initially granting refugee status to asylum seekers irrespective of their individual circumstances, given their possible arrest and torture as identified by multiple sources of information from 2011 and 2012 (3. aa) (1)-(4)).

A danger of persecution remained in existence at the time of the oral hearing as per s. 77 ss. 1 clause 1 sub-clause 1 AsylG, justifying the claimants’ fear and the unreasonableness of a return to Syria. However, this did not follow from information regarding actually deported persons, given the lack of deportations. Rather, the likelihood of persecution upon return was judged on a forward looking basis relying on factual reports (3. bb) (1)-(3)) regarding acts of persecution against political enemies within Syrian territory (VG Regensburg, judgement of 29th June 2016 – RO 11 K 16.30707; VG Meiningen, judgement of 27th March 2014 – 1 K 20092/12). The possibility of human rights violations as per s. 3a ss. 1 No. 1 AsylG is not changed by the defendant’s argument that the Syrian government has a reduced interest in questioning returnees following the different composition of refugees due to the mass emigration. Equally rejected is the presumption of some courts (OVG (High Administrative Court) Nordrhein-Westfalen, resolution of 5th September 2016 – 14 A 1802/16.A) that the Syrian government would not have the capacity to systematically persecute by reason of the mass emigration and the partial collapse of the state structure. The chamber bases its decision on the available sources of information (VG Regensburg, judgement of 19th June 2016 – RO 11 K 16.30707) and the government’s strengthened position in the recent past. Also, doubts (OVG Rheinland-Pfalz, resolution of 15th September 2016 – 1 A 10655/16.OVG) are unfounded as to whether the irregular emigration, the application for asylum and the long stay in a Western foreign country are in itself sufficient to find a threat of political group-persecution or whether further individual reasons are required. This follows from the fact that these already provide sufficient grounds for individual persecution and that the claimants are not concerned with group-persecution but rather “individual persecution by reason of belonging to a group” (OVG Sachsen-Anhalt, judgement of 18th July 2012 – 3 L 147/12). In this respect, the characteristic of belonging to a group does not, on its own, trigger persecution. The decisive factor is an additional circumstance that is more or less at the forefront, shaping the degree in which persecution affects the victim. Whilst not justifying the presumption of political persecution of each person fulfilling the characteristics, it does so regarding some specific members of that group (BVerwG (Federal Administrative Court), resolution of 22nd February 1996 – 9 B 15.96). There is no requirement of a certain level of persecution regarding members belonging to the respective group, justifying the group-persecution.

The claimants possess the named characteristics. Despite having no specific effect on the recognition of the refugee status, their characteristics are aggravated and supplemented by the fact that, as Christians and original citizens of Aleppo, viewed by the government as influenced by the opposition, the claimants belong to two target groups that are especially vulnerable (ECtHR, judgement of 15th October 2015 – 40081/14, 40088/14, 40127/14).

Outcome:

The applicants shall be granted protection as refugees as per s. 3 ss. 4 AsylG.

Subsequent proceedings:

OVG Schleswig – 23rd of November 2016 - 3 LB 17/16

BVerfG, resolution of 14th November 2016 – 2 BvR 31/14

Observations/comments:

The decision has the potential to bring the practice of the Federal Office for Migration and Refugees (BAMF), granting Syrian refugees only subsidiary protection rather than refugee status, to a halt. Whilst 1,400 out of 1,900 claims for refugee status succeeded in the past, the chamber’s judgement provides an exceptionally well-founded rejection of the BAMF’s argument that Syrian refugees would not be threatened by persecution upon their return to Syria, simply by reason of them having fled to a Western country and having sought asylum. It gives a detailed analysis of numerous existing sources of information, evidencing the regime’s systematic persecution of returners involving violations of human rights up to torture still today. It wipes out any arguments that the regime and secret service are not capable of such systematic persecution, declaring the current practice of the BAMF to reject Syrian applications for refugee status as unlawful.

However, other decisions have since casted doubt over the consistency of the courts in finding refugee status on the basis of general circumstances upon return to Syria. Thus, the High Administrative Court (OVG) of Schleswig recently found that there is neither reliable evidence for deported persons being generally seen as linked to the opposition nor that a questioning of returners would come under the Geneva Convention. The judgement requires individual reasons for the fear of persecution upon return to Syria, in contrast to the finding of the VG Trier in the underlying case.

Syrian refugee cases are yet to reach a majority of the Higher Administrative Courts (OVG) and the Federal Administrative Court (BVerwG), whilst the Administrative Courts of first instance (VG) remain split on the matter.

Further comments as to the potential meaning of the judgement in German under: https://www.proasyl.de/news/vg-trier-eindrucksvolles-urteil-zum-fluechtlingsschutz-fuer-syrerinnen/

This case summary was written by Christian J. Freuling, a GDL student at BPP University.

This case summary was  proof read by Wendy Brandt, a BTC student at BPP University.  

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