The applicant, a Syrian national, requested international protection in Belgium, which was rejected on the basis of commission of a serious non-political crime, namely sexual relations with his fourteen year old wife in Syria. He appealed the decision.

The CALL noted that to be able to consider that there are serious grounds for believing that a crime has been committed there are two particular elements, the material element and the moral element, that must be present. The CALL further noted that it was for the Commissioner to show that there were serious reasons to believe, first, that the applicant had had sexual relations with the minor and that they were not consented (material element) and, on the other hand, that the applicant was aware of the illegality of the act and the intention to commit it (moral element).

The Council considered, unlike the Commissioner, that the applicant’s statements did not support the conclusion that there were serious reasons to believe that he was aware of the lack of consent of his wife and that it was difficult to determine, from a reading of the applicant’s statements alone, whether he was faced with a refusal or slight reluctance. The Council also added that the applicant and his wife, now aged 20, have left Syria together, that the applicant’s wife linked her own application to that of the husband, that their first child was born in Belgium and that they are still a couple.

In light of all evidence, the Council considered that not all the elements were present to establish that there were serious reasons to believe that the applicant committed a serious non-political crime by maintaining sexual relations with his fourteen year old wife. The Council thus considered that the Commissioner did not sufficiently demonstrate either that the applicant was aware of the illegality of having sex with his wife or that he was aware of his possible lack of consent, so that the applicant cannot be excluded from international protection since one of the constituent elements of the alleged crime was lacking.

The applicant was granted refugee status due to fear of persecution as a result of his political views.

The judgment cites the EASO Judicial Analysis, Exclusion: Articles 12 and 17 Qualification Directive’, 2nd edition, 2020.