Schleswig-Holstein Administrative Court, August 15, 2016, Case No.: 12 A 149/16
Since 2015, the Federal Office for Migration and Refugees (BAMF) has increasingly granted only subsidiary protection under § 4 of the Asylum Act (AsylG) to Syrian asylum seekers.
Subsidiary protection is generally granted when an applicant does not qualify for asylum status or refugee status under § 3 AsylG. People are entitled to subsidiary protection if they can provide substantial reasons that they face a serious threat in their country of origin and cannot seek protection from their home country or do not wish to do so due to the threat.
Persons entitled to subsidiary protection are generally people who can provide valid reasons for the fact that they are threatened with serious harm in their country of origin and are unable or unwilling to avail themselves of the protection of their country of origin due to the threat.
states
(1) A foreign national is entitled to subsidiary protection if they have provided substantial reasons for believing that they face a serious threat in their country of origin.
Serious threats include:
- Imposition or execution of the death penalty,
- Torture or inhuman or degrading treatment or punishment, or
- A serious individual threat to life or physical integrity due to indiscriminate violence in situations of international or internal armed conflict.
However, the Asylum Package II makes a very serious difference for those affected compared to the GRC refugees: Family reunification for beneficiaries of subsidiary protection has been suspended for two years.
As a result, more and more individuals granted subsidiary protection are challenging the BAMF’s decisions in court to obtain a higher level of protection. This was the case before the Schleswig-Holstein Administrative Court.
Background and Entry of the PlaintiffBackground and Entry of the Plaintiff
The plaintiff is a Syrian national of Arab descent and Muslim faith. He entered Germany by land on December 10, 2015, and applied for asylum on April 15, 2016. The asylum application was limited to the granting of international protection under § 13(2) of the Asylum Act (AsylG), focusing on refugee status and subsidiary protection. The plaintiff’s personal hearing took place on April 22, 2016.
Decision of the Federal Office and Appeal
On April 28, 2016, the Federal Office for Migration and Refugees granted the plaintiff subsidiary protection but denied his application for refugee status. Consequently, the plaintiff filed an appeal on May 12, 2016, requesting that the court obligate the respondent to grant him refugee status.
Court Decision Without Oral Hearing
The Schleswig-Holstein Administrative Court decided the case by court order without an oral hearing, as the facts were clear, and the case did not present any particular legal or factual difficulties. The court followed the plaintiff’s request and declared the denial of refugee status to be unlawful, as it violated the plaintiff’s rights.
Well-Founded Fear of Persecution in Syria
The court concluded that the plaintiff had fled Syria due to a well-founded fear of persecution by the Syrian state. This fear arose from the Syrian government’s perceived critical stance of the plaintiff toward the regime. Upon returning to Syria, state persecution would be highly likely, as the Syrian regime would interpret the plaintiff’s illegal departure and asylum application as expressions of opposition to the regime.
Assessment of the Situation in Syria by Courts and Sources
The Administrative Court of Regensburg and other courts have determined that returnees from Western countries, especially from Germany, are viewed as potential opposition members and persecuted in Syria. This assessment is based on the extensive monitoring of Syrian nationals abroad by Syrian intelligence services and the worsening of Syria’s internal situation since 2011. The courts believe that returnees would face serious risks, such as human rights abuses or torture, during mandatory questioning by Syrian security forces.
Current Situation and Assessment by UNHCR
In its updated „UNHCR Considerations for the Protection Needs of Persons Fleeing the Syrian Arab Republic“ from November 2015, the UNHCR reports that the security and human rights situation in Syria has continued to deteriorate. Many governments have taken measures to suspend the forced return of Syrians. The UNHCR assesses that most Syrian asylum seekers meet the criteria for refugee status under the Geneva Convention, as they have a well-founded fear of persecution due to a presumed association with one of the parties to the conflict. The court shares this view and points out that, despite the increased issuance of Syrian passports, the Syrian regime continues to persecute returnees.
Source: Schleswig-Holstein Administrative Court
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