The applicant, a minor from Syria, requested international protection in Austria on 28 April 2024, claiming that he feared being killed by the Syrian regime, being conscripted into the military and having to participate in the war. On 10 September 2024, the Federal Office for Immigration and Asylum (BFA) rejected his application for refugee status but granted him subsidiary protection, reasoning that he had not been subjected to asylum-related persecution and that there was no sufficient likelihood that he would be conscripted into military service by the government or other groups, nor was he affected by forced or child recruitment.

The applicant lodged an appeal against the decision before the Federal Administrative Court (BVwG), stating that the BFA failed to address the likelihood of child recruitment while referencing EUAA reports and UNHCR considerations. The BVwG dismissed the appeal and held that the minor is not expected to face a significant likelihood of being recruited as a child soldier. Whilst forced recruitment was possible, it was not considered significantly likely considering the population size of the applicant's region of origin, Aleppo, and the number of documented cases. The BVwG stated that the minor's claim to have witnessed child recruitment himself was not credible as he left Syria as a small child, has since lived abroad and he did not need to fear conscription into military service.

The applicant lodged a constitutional complaint against the decision of the lower court, alleging a violation of constitutionally guaranteed rights. The applicant argued that the decision neglected the specific risk profile of the minor and that the BVwG should have considered EUAA reports and that most cases of child recruitment would take place in the minor's region of origin.

The Constitutional Court (VfGH) recalled that Article I(1) of the Federal Constitutional Act implementing the International Convention on the Elimination of All Forms of Racial Discrimination prohibits unjustifiable distinctions between aliens and requires equal treatment, except where objectively reasonable and proportionate grounds exist. 

The VfGH emphasized that arbitrariness arises when a lower court frequently disregards the legal framework, omits essential investigative steps or fails to consider the specific facts. It found that the BVwG made such an error.

The court recalled its established case law in which it emphasised that special attention should be paid to UNHCR and EUAA reports when assessing applications for international protection (Applicant v Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl‚ BFA), E2503/2025).

The court referred to the findings in the EUAA report Interim Country Guidance: Syria of June 2025 and in the EUAA report Syria: Country Focus of July 2025, which, contrary to the lower court's ruling stated that child recruitment by the Syrian National Army (SNA) or the  Syrian Democratic Forces (SDF) continued even after the fall of the Assad regime. The court also noted that asylum authorities should consider the socio-economic situation of an applicant, their family situation (e.g. whether a male relative could offer protection) and the place of origin when assessing the likelihood of persecution.

The VfGH noted that in this case the applicant was 13 years old and he had pointed out his particularly precarious situation because his immediate family no longer lived in Syria and his place of origin was in an area contested between the SNA and the SDF. Given these elements, the VfGH found that the lower court failed to examine whether the minor, given his individual circumstances, presented an elevated risk profile and whether he was at a significant risk of being recruited as a minor.

The court held that, by omitting to consider the mentioned EUAA reports and to investigate the specific facts of the case, the lower court decided arbitrarily.

Thus, the Constitutional Court overturned the decision of the Federal Administrative Court due to a violation of the constitutionally guaranteed right to equal treatment of aliens under Article I(1) of the Federal Constitutional Act.