The Federal Administrative Court ruled on the examination of refugee protection for applicants from Syria who evaded military service. The case concerned a Syrian national who applied for asylum in Germany in March 2016 and by decision of 21 July 2016, the BAMF granted subsidiary protection and decided that the applicant was not entitled to asylum. In the appeal procedure, the Regional Administrative Court overruled this decision and ordered the BAMF to grant refugee protection. The Higher Administrative Court rejected the BAMF’s onward appeal by judgement of 29 January 2021.

The Higher Administrative Court ruled on the required link between the act of persecution and the reason for persecution. It noted that according to the CJEU case law, in the case of refusal of military service, there was a "strong presumption" that the refusal was connected to a reason for persecution. Even if an assessment of the relevant factual circumstances regarding the required connection between the act of persecution and the reason for persecution was diffuse, there was a sufficient presumption that the punishment of conscientious objectors was also carried out for political reasons because they were to be disciplined as alleged political opponents of the regime.

The BAMF lodged an onward appeal against this decision before the Federal Administrative Court and stated that the Higher Administrative Court disregarded the fact that the assumption of a refusal of military service required at least a specific individual call-up for the person concerned. Furthermore, the BAMF stated that even though the CJEU has developed the strong presumption between act and ground of persecution, it had expressly pointed out that it is for the competent national authorities to examine the plausibility of that link in the light of all the circumstances in question.

The Federal Administrative Court decided that the contested judgement violated Section 29(1) No 4 of the Asylum Act because the Higher Administrative Court did not examine the reason for inadmissibility of the application based on the concept of a safe third country. According to the Federal Administrative Court, there would have been reason to apply it in view of an approximately six-year stay in the United Arab Emirates as reported by the applicant.

As regards refugee protection pursuant to Sections 3(1), 3a(1), (2) No 5 and (3) of the Asylum Act, the Federal Administrative Court decided that contrary to the BAMF’s view, a refusal to perform military service could be a ground for prosecution even if the applicant was not yet a member of the military or has not yet received a call-up order. Based on this, the court held that Section 3a(2) No 5 of the Asylum Act also covered the refusal of military service by applicants who are of military service age, belong to the group of those who are likely to be subject to military service and for whom there is a considerable probability that they will be called up in the near future.

However, the Federal Administrative Court held that contrary to the Higher Administrative Court’s considerations, forced recruitment with subsequent deployment to the front without sufficient military training does not constitute criminal prosecution or punishment within the meaning of Section 3a(2) No 5 of the Asylum Act. The court also noted that this was not relevant to the decision, as the judgement of the Higher Administrative Court was not based on this violation of this law.

As regards the existence of a link between an act and a ground of persecution pursuant to Section 3a(3) of the Asylum Act, the Federal Administrative Court ruled that it is for the competent national authorities and courts to assesses the plausibility for the strong presumption that the refusal to perform military service is related to a reason for persecution in light of all the circumstances of the case.

Based on the above, the Federal Administrative Court overturned the appealed judgment and referred the proceedings back to the Higher Administrative Court.

The Federal Administrative Court referred to the CJEU judgments, EZ v Bundesrepublik Deutschland (Federal Republic of Germany), C-238/19, 19 November 2020 and P.I. v Migration Department under the Ministry of the Interior of the Republic of Lithuania (Migracijos departamentas prie Lietuvos Respublikos vidaus reikalų ministerijos), C‑280/21, 12 January 2023.