The applicant, a Syrian national from a hometown near the city of Ar Raqqa, requested international protection on 13 July 2023, claiming that he had fled Syria to avoid forced recruitment by Kurdish troops in his home region. The Federal Office for Immigration and Asylum (BFA) rejected his application for international protection. The applicant lodged an appeal against this decision before the Federal Administrative Court, which on 12 November 2024 dismissed the appeal confirming the decision of the BFA. In its reasoning, the court held that the applicant would not face persecution relevant to asylum upon return to Syria, in particular that he did not have to fear disproportionate sanctions or forced participation in combat operations if he refused to fight for the Kurdish troops. It was further considered that the applicant could safely reach his home region, which was under the control of the Kurdish autonomous authorities, did not present an extremely dangerous situation, and that he had a ‘support network’ there that could facilitate his settlement through financial support, accommodation, advice and contacts. The applicant lodged an extraordinary appeal on points of law, limited to the refusal to grant subsidiary protection and the points of the decision based on it, before the Supreme Administrative Court (SAC), alleging that that the lower court’s reasoning was deficient, particularly regarding the security and supply situation in the region of origin.

The SAC first recalled that, pursuant to Section 41 of the VwGG, the legality of the contested decision must be assessed on the basis of the factual and legal situation at the time the decision was issued.

The SAC reiterated its settled case-law on subsidiary protection, according to which a case-by-case assessment is required to determine whether a person faces a real risk of treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) upon return to his country of origin. A holistic assessment must relate the individual’s personal situation to the general human rights situation in the destination state. Deportation may violate Article 3 of the ECHR if the person cannot secure a livelihood and basic necessities of life, but such a situation can only be assumed under exceptional circumstances.

The SAC noted that the lower court had acknowledged that the security situation in north-eastern Syria remained volatile but considered that indiscriminate violence did not reach a level affecting every returnee. The SAC further acknowledged that the lower court also denied that the applicant would face a situation threatening his existence if returned to Syria, despite the extremely poor supply situation, relying primarily on the existence of a family network in the region, his working age, health, and limited work experience as a tailor.

The SAC held that these considerations were affected by deficiencies in reasoning. It noted that the lower court itself relied on country-of-origin information (COI) findings indicating that more than 90% of the Syrian population lived below the poverty line, that at least 12 million people lacked sufficient access to food, that the supply situation in north-eastern Syria was particularly tense, that around 1.8 million of the 2.7 million inhabitants there depended on humanitarian aid, and that unemployment reached 85% in northern Syria. The SAC held that the lower court failed to make sufficient and comprehensible findings on the actual living conditions of the applicant’s family, merely assuming that family support would be sufficient.

In particular, the SAC held that the lower court did not adequately address the applicant’s statements that his family lived in a tent camp and that former agricultural livelihoods no longer existed, nor did it explain how the applicant could realistically secure his livelihood through his limited professional experience despite massive unemployment rate in Syria. The SAC held that, as a result, it was not possible to understand whether the family network could actually compensate for the generally extremely tense supply situation, so as to exclude a real risk of a violation of Article 3 of the ECHR.

The Supreme Administrative Court held that the lower court’s decision, insofar as it concerned the refusal of subsidiary protection, was vitiated by illegality due to violation of procedural provisions, in particular deficiencies in the statement of reasons. The contested decision was therefore set aside to the extent of the challenge.