A Syrian national requested international protection in Belgium, which was rejected by the Commissioner for Refugees and Stateless Persons (CGRS) on the basis of commission of a serious non-political crime, namely sexual relations with his fourteen-year-old wife in Syria. The CGRS cited the UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1 F of the 1951 Convention relating to the status of Refugees » to find that the applicant sexually abused a minor, his wife, in a repeated manner and to consider that she did not give consent. The CGRS concluded that the applicant was guilty of rape even if he explained that marriage at a young age and having sexual relations is based on religion and traditions in Syria. He appealed the decision before the Council for the Alien Law Litigation (CALL).

The CALL reiterated that exclusion clauses are to be interpreted strictly and even if the required standard for proof for criminal law is not reached, there still must be reasonable grounds to believe that an applicant is responsible for crimes or acts under Article 1F of the Geneva Convention. The CALL referenced the CJEU judgments in B and D, (C-57/09 and C-101/09, 9 November 2010) and Ahmed (C-369/17, 13 September 2018) and the EASO Judicial Analysis, Exclusion: Articles 12 and 17 Qualification Directive', 2nd edition, 2020.

It noted that  two particular elements, the material element and the moral element must be present to consider that there are serious grounds for believing that a crime has been committed. The CALL further noted that the burden of proof lies with the CGRS to prove 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 had the intention to commit it (moral element).It cited the EASO, Exclusion – Articles 12 and 17 Qualification Directive (2011/95/EU). A Judicial Analysis, January 2016.

From the outset, the Council found that the CGRS submitted an extract of the 'EASO Country Guidance: Syria. Common analysis and guidance note', September 2020, which mentioned that “acts that may not be considered serious crimes in Syria could be relevant exclusion grounds (e.g. marital rape, sexual relations with a minor in the context of child marriage)”. Even if the Council would deem that sexual relations with a minor in the context of an early marriage could constitute a reason for exclusion, it reiterated that exclusion is not automatic and requires an individual assessment and a consideration of the relevant elements.

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 her 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 a fear of persecution as a result of his political views.