The case concerned an applicant from the Ivano-Frankivsk Oblast in the western Ukraine who applied for asylum in Germany on 19 July 2018. The BAMF rejected the asylum application by decision of 16 January 2019 and issued a deportation threat to Ukraine. The applicant appealed against this decision before the Regional Administrative Court of Schwerin and stated that he feared forced recruitment to the Ukrainian army upon return. The Regional Administrative Court of Schwerin rejected the appeal by judgement of 24 February 2020. The applicant lodged an onward appeal before the Higher Administrative Court of Mecklenburg Western Pomerania, which granted the leave to appeal by a decision of 21 April 2021. The applicant added to his statements that after the beginning of the Russian war against Ukraine, the applicant’s life and integrity were under serious individual threat as a result of indiscriminate violence and armed conflict and that he feared killing, injury, imprisonment and war crimes by Russian forces as consequence of a potential conscription.

As regards refugee protection, the Higher Administrative Court of Mecklenburg Western Pomerania referred to the judgement of the Federal Administrative Court in Applicants v Federal Office for Migration and Refugees (BAMF) (1 C 1.22, 1 C 2.22, 1 C 3.22, 1 C 22.21, 1 C 23.21, 1 C 32.21, 1 C 33.21, 1 C 34.21, and others, 19 January 2023) and reiterated that prosecution and punishment for refusal to perform military service could generally not be regarded as significant persecution under refugee law unless it was to avoid participation in war crimes or other acts contrary to international law. Based on this, the court held that in the case of the applicant, it could not be assumed that he would be forced to commit a war crime during his military service in Ukraine, because no systematic violation of the international law of war by the Ukrainian armed forces could be identified.

The Higher Administrative Court of Mecklenburg Western Pomerania further examined whether the applicant should be granted subsidiary protection pursuant to Section 4(1) sentence 2 No 2 of the Asylum Act. The court acknowledged that conscientious objection in Ukraine resulted in prosecution and a sentence of several years in prison. The court further referred to reports of physical abuse, lack of medical care, nutritional deficiencies, lack of hygiene, lack of light and violence among prisoners and noted that prison conditions in Ukraine were poor, did not consistently meet international standards and in some cases posed a serious threat to the life and health of prisoners. However, the court noted that the applicant is a healthy man who is able to work, who is not dependent on medical care and who can improve his living conditions through work. As such, the court considered that although it is not unlike for the applicant to be criminally prosecuted and imprisoned for refusal, however in view of his individual circumstances it was assessed that he is not threatened with inhuman or degrading treatment or punishment pursuant to Article 3 ECHR.

As regards subsidiary protection pursuant to Section 4(1) sentence 2 No 3 of the Asylum Act, the court considered that although there was an international armed conflict in Ukraine, the fighting was currently centred on the east and south of the country and that the security situation in western Ukraine (Oblast Ivano-Frankivsk) was relatively stable, meaning that there was no serious individual threat to life or physical integrity upon return and without circumstances to indicate an increased individual risk.

Based on the above, the Higher Administrative Court of Mecklenburg Western Pomerania decided that the applicant was neither entitled to subsidiary protection, nor to a national deportation ban pursuant to Section 60(5) of the Residence Act.