Trier Administrative Court, 16/06/2016, Ref.: 1 K 1576/16.TR
For some time now, the Federal Office for Migration and Refugees (BAMF) has only granted Syrian nationals in particular subsidiary protection in accordance with Section 4 of the Asylum Act.
Subsidiary protection is the third legal basis, after asylum under Section 16a of the Basic Law and refugee status under Section 3 of the Asylum Act, from which those seeking protection can derive a right to stay in Germany.
Subsidiary protection therefore always applies if neither refugee protection nor the right to asylum can be granted and there is a risk of serious harm in the country of origin.
People entitled to subsidiary protection are those who can provide valid reasons for believing that they are at risk of 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 beneficiaries of subsidiary protection are taking legal action against the BAMF's decision despite being granted subsidiary protection. This is also the case in this case before the Trier Administrative Court.
Facts of the asylum procedure
The applicant, a Syrian citizen of Arab ethnicity, left his home country due to the ongoing political unrest and civil war in Syria. He came to Germany on 22 September 2015 and applied for asylum. Syria has been marked by a brutal civil war for years, with various factions, including the government of President Bashar al-Assad, opposition forces and terrorist organisations such as IS, fighting for control of the country. In this context, many people are forced to leave their home country to escape the violence.
After his arrival in Germany, the plaintiff's application for asylum was examined by the Federal Office for Migration and Refugees (BAMF). In a decision dated 21 April 2016, the BAMF rejected the claimant's application for refugee status. At the same time, however, he was granted subsidiary protection status. Subsidiary protection is an international protection status that is granted to people who are not recognised as refugees but would nevertheless be at serious risk in their home country. Nevertheless, the applicant decided to appeal against the rejection of refugee status, as he considered this to be an appropriate protection status.
Action by the plaintiff against the rejection notice
The plaintiff brought an action before the Trier Administrative Court with the aim of obliging the defendant - the Federal Republic of Germany, represented by the BAMF - to recognise him as a refugee in accordance with Section 3 of the Asylum Act (AsylG). Refugee status is granted to persons who are persecuted on account of their race, religion, nationality, political convictions or membership of a particular social group and are therefore unable to return to their home country.
The applicant argued that he would be exposed to considerable danger if he returned to Syria, in particular due to his illegal departure, his application for asylum in Germany and his prolonged stay abroad. These factors could be interpreted by the Syrian authorities as a sign of opposition to the Assad regime. In Syria, people suspected of opposing the regime face arrest, torture and even death. The applicant therefore demanded that he be granted refugee status, which would offer him greater legal protection than subsidiary protection status.
Decision of the Trier Administrative Court
The Trier Administrative Court upheld the plaintiff's appeal and ruled that he should be recognised as a refugee. At the same time, the court cancelled the BAMF's decision to the contrary. In its grounds for judgement, the court found that the conditions for granting refugee status were met. In particular, it found that the claimant's fear of returning to Syria had to be considered well-founded.
The court stated that the granting of refugee status in accordance with Section 3 Asylum Act requires a well-founded fear of persecution by the home country. This persecution must be directed against the individual on the basis of unavoidable characteristics, such as their political beliefs, religion or membership of a particular social group. The intensity of the persecution must be such that it excludes the person concerned from the state peace order and violates their human dignity. The court emphasised that not only the immediate danger to life, limb or personal freedom is relevant, but also other serious impairments of legal interests.
Legal basis for refugee status
The legal basis for recognising refugee status in Germany is set out in the Asylum Act (AsylG), which in turn is based on international regulations such as the Geneva Refugee Convention. According to Section 3 of the Asylum Act, a person must be recognised as a refugee if they are persecuted in their home country for a well-founded fear of persecution on account of their race, religion, nationality, political opinion or membership of a particular social group and cannot claim protection from the state of their home country.
In this context, the Trier Administrative Court found that the plaintiff's fear of persecution was well-founded. It argued that if the claimant were to return to Syria, he would be exposed to persecution with considerable probability due to his illegal departure, his application for asylum and his prolonged stay abroad. The court argued that the Syrian authorities could consider returnees who have left the country without authorisation and applied for asylum abroad as opposition elements. In such a case, the applicant would be subject to arrest and possibly serious ill-treatment, including torture.
Political persecution in Syria
The situation in Syria is characterised by a repressive regime that has been taking brutal action against actual or perceived opponents for years. The Assad regime has repeatedly shown that it is prepared to use any means necessary to maintain its power, including the persecution and oppression of its own people. Human rights organisations and international reports regularly document cases of arbitrary arrests, torture and enforced disappearances of people considered oppositional. In this context, the danger to which the claimant would be exposed if he were to return to Syria is real and acute.
The Administrative Court also based its decision on previous judgements by other administrative courts that had come to similar conclusions. For example, in a judgement from 2012, the Higher Administrative Court of Saxony-Anhalt found that Syrian returnees were at risk of persecution abroad due to their asylum application. The Administrative Court of Baden-Württemberg had also emphasised the risk of political persecution for Syrian returnees in several decisions.
Conclusions and significance of the decision
The decision of the Trier Administrative Court to grant the claimant refugee status has far-reaching significance for similar cases. It shows that the courts scrutinise the individual situation of asylum seekers and take into account both the political conditions in the country of origin and the specific circumstances of the asylum seeker. The decision makes it clear that subsidiary protection status is not always sufficient to adequately cover the dangers to which an asylum seeker is exposed.
By being recognised as a refugee, the applicant receives a stronger protection status, which not only secures him a permanent right of residence in Germany, but also offers him more far-reaching rights with regard to family reunification and integration. The court's decision also emphasises the important role of the German judiciary in enforcing human rights and protecting vulnerable people from persecution.
Source: Trier Administrative Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email to info@mth-partner.de
Lawyers in Cologne advise and represent clients nationwide in immigration law.