The applicant reached Germany on his third attempt to evade military service in his country of origin. During the first two attempts, the applicant was caught, imprisoned, subjected to torture and inhuman or degrading treatment and freed solely thanks to his father’s guarantee and his own promise to later perform military service.

On 14 May 2018, the authorities granted the applicant subsidiary protection, as they considered the applicant likely to be seriously harmed although he did not fulfil the requirements to obtain refugee status. The applicant’s subsidiary protection was later extended.

On 25 June 2019, the applicant requested the issuance of a travel document. However, he explained he could not produce his passport because he never owned one and could not be expected to obtain one from the Eritrean embassy. He justified that contacting the embassy would endanger him and his family. He noted he would have to sign a declaration of repentance, which would go against his political convictions.

On 3 December 2019, the authorities rejected this claim, stating it could be reasonably expected from beneficiaries of subsidiary protection, as opposed to refugees, to obtain a passport or substitute from the relevant embassy. The applicant objected to this decision, but the BAMF opposed the objection noting that neither the applicant nor his family would be at risk if he contacted the embassy.

On 12 February 2020, the applicant appealed against the authorities’ decision, stating that his situation was similar to that of a refugee because he would be exposed to inhuman treatment upon return to Eritrea, where he could not escape the State nor obtain protection from it.

The authorities requested the court to dismiss the appeal, claiming that the issuance of a travel document was not possible on the basis of equal treatment with recognised refugees as it would amount to correcting indirectly the Federal Office’s decision concerning the status of the applicant.

On 25 June 2021, the court annulled the authorities’ decision of 3 June 2021. It added that the authorities should have provided the applicant with a travel document in the first place because the following conditions were met: the applicant was in possession of a residence permit and it could not reasonably be expected from him to obtain a passport or substitute from the embassy. The court noted that the unreasonableness of this request did not stem from the grounds for flight and granting of subsidiary protection nor from the danger the applicant and his family would be exposed to, but rather from the self-incrimination required in the form of the declaration of repentance, which went against the basic human rights protected under German law.

On 29 July 2021, the authorities appealed against the court’s decision, stating the presence of unreasonable expectations for the applicant to obtain a passport could only be assessed individually and exceptionally. The authorities added that such expectations would be found if the applicant was granted refugee status as an opponent to the regime, but it was not the case here. In particular, the authorities noted that it was not established that signing the declaration of repentance would go against the applicant’s political convictions, especially as the content was not formally determined due to the existence of various translations. The authorities added that the German embassy in Asmara noted that signing the declaration of repentance is usually a consequence-free formality, which could not violate the applicant’s basic human rights. It further explained that signing this declaration was in fact a prerequisite to the extension of the diaspora status and acted as a guarantee that the applicant would not be punished nor conscripted upon return to Eritrea. The authorities also argued that signing the declaration could not be considered self-incrimination because both the applicant and the Eritrean State were already aware of the criminal offence. Finally, the authorities stated that in light of the mass phenomenon that has become flight from Eritrea, it could be assumed that signing the declaration of repentance was often done involuntarily, with the sole purpose of obtaining the diaspora status and using consular services, thus rendering individual assessment of political convictions unnecessary.

The Higher Administrative Court rejected the authorities’ appeal, noting that the rejection of the applicant’s request through the notice dated 27 January 2020 was unlawful and infringed on the applicant’s rights. The court stated that at the time of the facts, foreign residence permit holders could be issued with a travel document even if they did not have a passport or substitute, granted they could not be reasonably expected to obtain one. The court declared that whether an applicant could reasonably be expected to obtain a passport could not be determined by the authorities but required a thorough judicial assessment on a case-by-case basis. The court highlighted that, due to interferences with another State’s sovereignty, the issuance of a travel document by national authorities should be considered only when the applicant’s first attempt to obtain a passport from his embassy was unsuccessful.

In this case, the court stated that while the applicant did not attempt to obtain a passport from the Eritrean embassy, it was unreasonable to expect him to do so.

The court noted that the authorities’ decision on the applicant’s status was irrelevant in this case: while there were differences between the legal situations of refugees and beneficiaries of subsidiary protection regarding the issuance of travel documents, what was at stake here was whether the applicant could be reasonably expected to obtain a passport from the Eritrean embassy.

The court added that, in conducting this assessment, it was necessary to account for the grounds on the basis of which the applicant was granted subsidiary protection, in particular to determine ‘whether the persecution situation is comparable to that of a refugee in terms of material and result’. The court noted that the situations would be equivalent in the case of a violation of article 3 ECHR or article 4 of the EU Charter of Fundamental Rights. The court highlighted that such assessment should be carried out on a purely individual basis, as the applicant sharing the same fate as many others did not mean that their country of origin exposed beneficiaries of protection to (threats of) unlawful treatment or punishment in a "general and undifferentiated" manner. The court emphasised that it was required for both refugees and beneficiaries of subsidiary protection to establish that the relationship of protection between the applicant and their country of origin ceased; if this relation was severed, it could not be reasonably expected from the applicant to request a travel document from the authorities of his country of origin. In this instance, it was demonstrated that the relationship of protection between the applicant and his country of origin was terminated because returning would put him at considerable risk of human rights violations, specifically under article 3 ECHR.

The court stated that the authorities had made it clear in its decision to grant the applicant subsidiary protection that he had already suffered violations of article 3 ECHR at the hands of his State of origin and was at risk to undergo similar treatment, would he return. The court added that a new assessment of the abovementioned was unnecessary as the authorities had not revoked nor withdrawn its decision. Following the authorities’ decision, the applicant reasserted that the relationship between himself and Eritrea was terminated due to the treatment he was subjected to by the State and declared that, as such, he would be endangered if he decided to reach out to the embassy. The court declared that this was enough to determine the unreasonableness of the expectations for the applicant to apply for a travel document at the embassy, regardless of how many applicants are in the same situation.

The court ordered the respondent to issue a travel document for the applicant, noting that the authorities did not have any discretion is this case, as national law interpreted in light of article 25(2) of the Recast Qualification Directive requested them to issue the applicant’s travel document unless there were ‘compelling reasons of national security or public order’.