Germany - Federal Administrative Court, Decision 1 C 29/17, 19 April 2018

Country of Decision:
Country of Applicant:
Date of Decision:
Federal Administrative Court, Decision 1 C 29/17, April 2018
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany §§ 3
31 Abs. 3 S. 2
77 Abs.1 AsylG (Asylum Act version July 2017)
Germany §§ 31 Abs. 3
114 S. 1
137 Abs. 1 Nr. 1
134 Abs. 4
173 Abs. 1 VwGO (Code of Administrative Procedure)
Germany § 40 VwVfG (Administrative Procedure Act)
Germany §§ 25 Abs. 2
Abs. 3
27 Abs. 1
29 Abs. 3
30 Abs. 1
60 Abs. 5
Abs 8
§ 104 Abs. 13 AufenthG (Residence Act Version March 2018)
Germany § 557 Abs. 2 S. 3 ZPO (Code of Civil Procedure)
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§ 104 para. 13 S. 1 of AufenthG (Residence Law) impedes the claim of a person with subsidiary protection for the assessment of a case of non-refoulment referring to the situation in the state of origin according to § 60 Abs. 5 AufenthG and Art. 3 ECHR in order to enable family reunion due to the lack of a defensible interest. 


The appellants, mother and child, are of Eritrean origin and part of the Tigrinya ethnic group. In September 2015, the appellant arrived to Germany and applied for asylum for herself and her child in February 2016. Her asylum claim was based on her illegal exit from Eritrea and the desertion from the national military service, as well as being the wife of an Eritrean deserter. The application for asylum was denied whereas a subsidiary protection was granted.

The appellant requested the recognition of refugee status and the assessment of her non-refoulement case referring to the situation in her country of origin. The claim was rejected by the administrative court.

The appellant filed an appeal to the Federal Administrative Court. She maintained that her refugee status should have been recognised and that an examination of non-refoulement should have been carried out.

Decision & Reasoning: 

The Federal Administrative Court found that the administrative court did not violate federal law but correctly ruled that the appellant is not persecuted due to a political opinion according to § 3 para. 1 AsylG and § 3b para. 1 No. 5 AsylG. The administrative court rightly granted subsidiary protection, as she will rather face punishment in the form of inhumane treatment because she and her husband deserted from national military service and exited the country illegally.  

Moreover, she is not member of a particular social group according to § 3b Abs. 1 Nr. 4 AsylG. Being part of a family in which there is a deserter or a close person to a deserter is not sufficient to assume the existence of a particular social group because this group would have no common characteristic and would be considered rather inhomogeneous. Additionally, they are not perceived as different by the rest of the Eritrean society which is the second necessary precondition for this ground of persecution. Lastly, there is no risk of gender specific persecution due to female genital mutilation.

The court also noted that her son, as a minor, will not be granted the status of a refugee because of § 26 para. 2 AsylG that stipulates as a precondition for the child’s refugee status that the parents have already been granted that status.

 The Federal Administrative Court finds that the administrative court rightly decided against the assessment of a case of non-refoulment referring to the situation in the state of origin and that it does not violate § 60 para. 5 AufenthG, Art. 3 ECHR and § 31 para. 3 AsylG, § 114 S. 1 VwGO and § 40 VwVfG. There is no defensible interest on the part of the appellant because even in case of a successful appeal, there would be no legal advantage.

In asylum law, the scope of protection is graded/differentiated according to the subject matter of the dispute. The granting of asylum and the refugee status has to be assessed equally whereas the grant of subsidiary protection is seen as a subsidiary request. Due to the high importance of Art. 3 ECHR, there is no hierarchical order between the case of non-refoulment and the status of subsidiary protection, although the ladder has to be examined with priority. Consequently, if an individual is already granted subsidiary protection status, an assessment of non-refoulement is not necessary.

Furthermore, there are no further legal benefits for the appellant. There could be a right to family reunification when granted a residence permit on the basis of non-refoulement (according to § 25 para. 3 S. 1 AufenthG and §§ 27 para. 1, 30 Abs. 1 Satz 1 No. 3 lit. e and § 29 para. 3 S 1 AufenthG)­­ but it is questionable whether there can be a right to residence according to § 25 para. 3 S. 1 AufenthG, if the person already has a right to residence on the basis of subsidiary protection according to § 25 para. 2 S. 1.

In any case, such a right to family reunification would be precluded by § 114 para. 13 S. 1 AufenthG, which suspends the possibility for reunification for persons with subsidiary protection. First, the wording of § 114 para 13. S. 1 AufenthG does not differentiate between persons that were granted a residence permit according to § 25 para. 3 S. 1 additionally to a residence permit according to § 25 para. 2 S. 1 and persons that were only granted one according to § 25 para. 2 S. 1. Also, in a systemic interpretation, there is no evidence in the other paragraphs that imply that such a differentiation should be made. This corresponds with the purpose of the provision which shall protect the state from an overwhelming situation and it shall provide time and planning security for the municipalities. This purpose would be circumvented if a family reunification would be possible for people with subsidiary protection if they also have a right to residence according to a case of non-refoulement according to § 60 para. 5 AufenthG.


Appeal denied.


This summary was drafted by Michael Spath, student at the Law Department of the University of Cologne.

Other sources cited: 

Domestic Case Law

BVerwG (Federal Administrative Court), 19 May 1987 - 9 C 184.86

BVerfG, ruling 10 July 1989 - 2 BvR 502/86, 2 BvR 1000/86, 2 BvR 961/86

BVerfG, Chamber’s order, 4 December 2012 - 2 BvR 2954/09

BVerwG (Federal Administrative Court), 19 August 1986 - 9 C 322.85

BVerwG (Federal Administrative Court), 6 December 1988 - 9 C 22.88

BVerwG (Federal Administrative Court), 25 June 1991 - 9 C 131.90

BVerwG (Federal Administrative Court), 24 October 1995 - 9 C 3.

BVerwG (Federal Administrative Court, 26 February 2009 - 10 C 50.07

BVerwG (Federal Administrative Court) ruling, 24 April 2017 - 1 B 22.17

BVerwG (Federal Administrative Court), ruling 2 November 1995 - 9 B 710.94

BVerwG (Federal Administrative Court), 27 April 1982 - 9 C 239.

BVerwG (Federal Administrative Court), 2 July 1985 - 9 C 35.84

BVerwG (Federal Administrative Court), 17 January 1989 - 9 C 44.87

BVerwG (Federal Administrative Court) ruling, 11 October 1963 - 7 B 95.63

BVerwG (Federal Administrative Court) ruling, 28 August 1987 - 4 N 3.86

BVerwG (Federal Administrative Court), 28 April 1998 - 9 C 1.97

BverwG (Federal Administrative Court), 17 June 2014 - 10 C 7.13

BVerwG (Federal Administrative Court), 24 June 2008 - 10 C 43.07

BverwG (Federal Administrative Court), 27 April 2010 - 10 C 5.09

BverwG (Federal Administrative Court), 24 June 2008 - 10 C 43.07

BVerwG (Federal Administrative court), 27 April 2010 - 10 C 4.

BVerwG (Federal Administrative Court), 31. January 2013 - 10 C 15.12

BVerwG (Federal Administrative Court), 13 June 2013 - 10 C 13.12