A Syrian national entered the German territory in 2015. On 20 October 2016, his application for asylum was rejected by BAMF but he was granted subsidiary protection and a residence permit until 22 November 2019.
On 7 November 2019, the applicant requested the issuance of a new travel document from the Berlin Immigration Office (Landesamt für Einwaderung). Although his passport had expired in 2017, he submitted it as evidence of his identity and he did not present a new one, claiming that it was impossible for him to apply for one at the Syrian embassy because it could lead to reprisals towards him and his sister who lived in Syria. He based this claim on the fact that he had evaded conscription and that he was an active member of the Al-Hadatha party, thus a conscientious objector to the Syrian regime.
On 30 April 2020, the Berlin Immigration Office (Landesamt für Einwaderung) rejected his application, putting forward that his belonging to an opposition party did not prevent him from obtaining a passport from the Syrian authorities and that he had not demonstrated that his sister was endangered. The applicant opposed this decision and produced his sister’s ID to substantiate his claim, but the Immigration Office (Landesamt für Einwaderung) rejected the claim on 14 July 2020.
On 10 August 2020, the applicant appealed against the decision dated 30 April 2020. He produced his membership card of the Al-Hadatha party and referred to the CJEU case of E.Z. v Bundesrepublik Deutschland (Federal Republic of Germany (C-238/19, 19 November 2020) according to which conscientious objectors to the regime regularly face persecution. He also added that his sister did not only face reprisals by the Syrian State but also by the extremist groups who controlled Idlib, the region she lived in.
The Immigration Office (Landesamt für Einwaderung) requested the court to dismiss the appeal on the basis that both in first instance procedure and the Berlin Administrative Court denied the applicant the status of refugee due to insufficient claims regarding the risk of facing persecution as a conscription evader. The Immigration Office added that the applicant had not decisively established that his sister was at risk.
The court ruled in favour of the applicant, noting that, under German law, travel documents may be issued on a case-by-case basis to applicants who do not possess a passport or substitute and cannot be reasonably expected to obtain one. The court found that the requirement to make all efforts to obtain a passport or substitute from the consulate of the applicant’s country of origin also applied to beneficiaries of subsidiary protection and assessments of cases where persons cannot reasonably be expected to obtain the document from their country of origin’s authorities were strictly exceptional. However, the court added that such exceptions included the cases where requesting a passport could directly endanger the person and/or his or her family. In this case, the court stated, on the basis of COI and German law, that it could not be ruled out that seeking to obtain a passport from the Syrian embassy represented a serious risk for the applicant and his sister, as he was a conscription evader and an active conscientious objector since in exile. The court mentioned that the well-established political activities of the applicant added danger both for himself with regards to conscription and his sister regarding reprisals, as supported by the evidence presented by the applicant that other activists in exile such as him received threats from the Syrian regime.