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Germany, Regional Administrative Court [Verwaltungsgerichte], Applicant v Federal Office for Migration and Refugees (BAMF), 11 K 164/22, 09 September 2022. Link redirects to the English summary in the EUAA Case Law Database.
The case concerns a preliminary ruling on the interpretation of Article 9(2)(e) and (3) of the Qualification Directive (recast). The request was made by the Administrative Court of Hanover during proceedings between EZ, a Syrian national, and the Federal Office for Migration and Refugees (BAMF), who refused refugee status and granted subsidiary protection.
EZ claimed refugee status in Germany on 28 January 2016, claiming that he would face persecution in Syria as he fled conscription our of fear of having to fight in the civil war. BAMF granted him subsidiary protection and noted that he had not been persecuted in Syria and none of the refugee grounds could be applied to him. EZ challenged this decision arguing that his flight from Syria in order to avoid military service and his application for asylum in Germany expose him to a risk of persecution. The Administrative Court of Hanover stayed the domestic proceedings and sought the interpretation of Article 9(2)(e) and (3) of the Qualification Directive (recast).
The CJEU held that, where the law of the country of origin does not provide for the possibility of refusing to perform military service, Article 9(2)(e) of the Qualification Directive (recast) must be interpreted as not precluding the finding of a refusal to perform military service even if the person did not formalise the refusal through a certain procedure and has fled the country of origin without presenting themselves to the military authorities.
The Court further held that, in the context of a civil war in which crimes are committed systematically by the army, this provision must be interpreted in the sense that for a conscript who refuses to perform military service but does not have information about the future field of military operation will be, it should be assumed that the military service will involve the commission of crimes, irrespective of the field of operation.
The Court further noted that there must be a connection between the grounds of persecution and the refusal to perform military service. The Court also noted that refusal to perform military service can be an expression of political opinions or of religious beliefs and in such cases the acts of persecution that follow a refusal are also linked to the same reasons.
The Court concluded that "Article 9(2)(e) in conjunction with Article 9(3) of Directive 2011/95 must be interpreted as meaning that the existence of a connection between the reasons mentioned in Article 2(d) and Article 10 of that directive and the prosecution and punishment for refusal to perform the military service referred to in Article 9(2)(e) of that directive cannot be regarded as established solely because that prosecution and punishment are connected to that refusal. Nevertheless, there is a strong presumption that refusal to perform military service under the conditions set out in Article 9(2)(e) of that directive relates to one of the five reasons set out in Article 10 thereof. It is for the competent national authorities to ascertain, in the light of all the circumstances at issue, whether that connection is plausible."
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