Germany - VG Trier, 7 October 2016, 1 K 5093/16.TR

Country of Decision:
Country of Applicant:
Date of Decision:
07-10-2016
Citation:
1 K 5093/16.KR
Court Name:
Administrative Court Trier
National / Other Legislative Provisions:
Germany - AsylG (Asylum Law) Article 3(1)(2)(4)
Germany - AsylG (Asylum Law) Article 3a (1)(2)(3)
Germany - AsylG (Asylum Law) Article 3b(1)(2)
Germany - AsylG (Asylum Law) Article 3d
Germany - AsylG (Asylum Law) Article 3e
Germany - AsylG (Asylum Law) Article 3e(1)
Germany - AsylG (Asylum Law) Article 4(3)
Germany - AsylG (Asylum Law) Article 15(1)
Germany - AsylG (Asylum Law) Article 25(1)(2)
Germany - AsylG (Asylum Law) Article 28
Germany - AsylG (Asylum Law) Article 28(a)(2)
Germany - AsylG (Asylum Law) Article 76(1)(3)
Germany - AsylG (Asylum Law) Article 77
Germany - AsylG (Asylum Law) Article 78(3)
Germany - BGBl. (Civil Code)
Germany - Administrative Court Rules - 6(3)
Germany - Administrative Court Rules - 42(1)
Germany - Administrative Court Rules - 88
Germany - Administrative Court Rules - 102(2)
Germany - Administrative Court Rules - 108(1)
Germany - Administrative Court Rules - 113(5)
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Headnote: 

When deciding whether refugee status should be available , one must not only consider any pre-persecution but also post-flight circumstances. Judged  on a forward looking basis of persecution of political enemies within Syrian territory, upon return to Syria there continues to be a danger of individual persecution including human rights violations by reason of belonging to a certain group. 

Facts: 

The claimant of Christian faith, his wife and their two children fled  Aleppo via the “Balkan route”. The family’s house, the claimant’s shop and the children’s school were all hit by rockets fired by the opposition. Upon arrival to Germany, the family was granted subsidiary protection by the authorities. However, a request for the more generous protection as refugees was denied, given the absence of legally relevant acts of persecution and “connecting features”. The claimants subsequently requested refugee status. They argued that, as a result of fleeing Syria, staying in a Western foreign country and their application for asylum, the Syrian government would accuse them of disloyalty upon their return to the country. A politically motivated persecution would already consist in the threat that security forces could arrest the claimants upon arrival, questioning them about the overseas connections of the opposition and  involving probable violations of human rights culminating in torture.

Decision & Reasoning: 

The defendant’s absence before the court did not prevent the court from making a decision. The defendant had been lawfully summoned and had been made aware of a decision being possible despite her absence in accordance with s. 102 ss. 2 VwGO (Code of Administrative Court Procedure). 

The court could not find pre-persecution as a reason for the claimants’ emigration from Syria within the meaning of s. 3 ss. 1 AsylG (Asylum Law). In this respect, the claimants’ submission of the war situation generally, the endangered life and health of the family as well as a disappeared neighbour of Christian faith are to be seen as too unspecific. Therefore, initially, as per s. 15 ss.1 and s. 25 ss. 1 and ss. 2 AsylG, the defendant was rightfully denied recognition of refugee status on the grounds of the absence of a substantiated reason (s. 3b AsylG) or act (s. 3a AsylG) of persecution.

However, the defendant’s notice is unlawful, having exclusively found the non-existence of the refugee status on the basis of lacking pre-persecution without taking account of post-flight circumstances within the meaning of s. 28 AsylG. Therefore, the chamber concluded that, within the meaning of s. 3a ss. 1 and s. 3b ss. 1 No. 5 AsylG,  “from the point of view of a prudently and reasonably thinking man and after consideration of all known circumstances, upon their hypothetical return to Syria, in any event, [the claimants were threatened by] persecution due to the political opinion attributed to [them]”. This finding results from previous decisions (VG (Administrative Court) Trier, judgement of 14th June 2016 – 1 K 1105/16.TR; VG Trier, judgement of 16th June 2016 - 1 K 1576/16.TR), initially granting refugee status to asylum seekers irrespective of their individual circumstances, given their possible arrest and torture as identified by multiple sources of information from 2011 and 2012 (3. aa) (1)-(4)).

A danger of persecution remained in existence at the time of the oral hearing as per s. 77 ss. 1 clause 1 sub-clause 1 AsylG, justifying the claimants’ fear and the unreasonableness of a return to Syria. However, this did not follow from information regarding actually deported persons, given the lack of deportations. Rather, the likelihood of persecution upon return was judged on a forward looking basis relying on factual reports (3. bb) (1)-(3)) regarding acts of persecution against political enemies within Syrian territory (VG Regensburg, judgement of 29th June 2016 – RO 11 K 16.30707; VG Meiningen, judgement of 27th March 2014 – 1 K 20092/12). The possibility of human rights violations as per s. 3a ss. 1 No. 1 AsylG is not changed by the defendant’s argument that the Syrian government has a reduced interest in questioning returnees following the different composition of refugees due to the mass emigration. Equally rejected is the presumption of some courts (OVG (High Administrative Court) Nordrhein-Westfalen, resolution of 5th September 2016 – 14 A 1802/16.A) that the Syrian government would not have the capacity to systematically persecute by reason of the mass emigration and the partial collapse of the state structure. The chamber bases its decision on the available sources of information (VG Regensburg, judgement of 19th June 2016 – RO 11 K 16.30707) and the government’s strengthened position in the recent past. Also, doubts (OVG Rheinland-Pfalz, resolution of 15th September 2016 – 1 A 10655/16.OVG) are unfounded as to whether the irregular emigration, the application for asylum and the long stay in a Western foreign country are in itself sufficient to find a threat of political group-persecution or whether further individual reasons are required. This follows from the fact that these already provide sufficient grounds for individual persecution and that the claimants are not concerned with group-persecution but rather “individual persecution by reason of belonging to a group” (OVG Sachsen-Anhalt, judgement of 18th July 2012 – 3 L 147/12). In this respect, the characteristic of belonging to a group does not, on its own, trigger persecution. The decisive factor is an additional circumstance that is more or less at the forefront, shaping the degree in which persecution affects the victim. Whilst not justifying the presumption of political persecution of each person fulfilling the characteristics, it does so regarding some specific members of that group (BVerwG (Federal Administrative Court), resolution of 22nd February 1996 – 9 B 15.96). There is no requirement of a certain level of persecution regarding members belonging to the respective group, justifying the group-persecution.

The claimants possess the named characteristics. Despite having no specific effect on the recognition of the refugee status, their characteristics are aggravated and supplemented by the fact that, as Christians and original citizens of Aleppo, viewed by the government as influenced by the opposition, the claimants belong to two target groups that are especially vulnerable (ECtHR, judgement of 15th October 2015 – 40081/14, 40088/14, 40127/14).

Outcome: 

The applicants shall be granted protection as refugees as per s. 3 ss. 4 AsylG.

Subsequent Proceedings : 

OVG Schleswig – 23rd of November 2016 - 3 LB 17/16

BVerfG, resolution of 14th November 2016 – 2 BvR 31/14

Observations/Comments: 

The decision has the potential to bring the practice of the Federal Office for Migration and Refugees (BAMF), granting Syrian refugees only subsidiary protection rather than refugee status, to a halt. Whilst 1,400 out of 1,900 claims for refugee status succeeded in the past, the chamber’s judgement provides an exceptionally well-founded rejection of the BAMF’s argument that Syrian refugees would not be threatened by persecution upon their return to Syria, simply by reason of them having fled to a Western country and having sought asylum. It gives a detailed analysis of numerous existing sources of information, evidencing the regime’s systematic persecution of returners involving violations of human rights up to torture still today. It wipes out any arguments that the regime and secret service are not capable of such systematic persecution, declaring the current practice of the BAMF to reject Syrian applications for refugee status as unlawful.

However, other decisions have since casted doubt over the consistency of the courts in finding refugee status on the basis of general circumstances upon return to Syria. Thus, the High Administrative Court (OVG) of Schleswig recently found that there is neither reliable evidence for deported persons being generally seen as linked to the opposition nor that a questioning of returners would come under the Geneva Convention. The judgement requires individual reasons for the fear of persecution upon return to Syria, in contrast to the finding of the VG Trier in the underlying case.

Syrian refugee cases are yet to reach a majority of the Higher Administrative Courts (OVG) and the Federal Administrative Court (BVerwG), whilst the Administrative Courts of first instance (VG) remain split on the matter.

Further comments as to the potential meaning of the judgement in German under: https://www.proasyl.de/news/vg-trier-eindrucksvolles-urteil-zum-fluechtlingsschutz-fuer-syrerinnen/

This case summary was written by Christian J. Freuling, a GDL student at BPP University.

This case summary was  proof read by Wendy Brandt, a BTC student at BPP University.  

Other sources cited: 

Bundesministerium des Innern, Verfassungsschutzbericht 2012, p. 400

Auswärtiges Amt, ad-hoc-Bericht über die asyl- und abschiebungsrechtlich relevante Lage in der Republik Syrien of 17th February 2012, p. 10 f.

United States Department of State, 2015 Human Rights Re- port: Syria, Bureau of Democracy, Human Rights and Labor. 2015 Country Reports on Human Rights Practices, April 13th, 2016, S. 35/36, Available at: http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm, Accessed 7th October 2016

Immigration an Refugee Board of Canada [IRB], Syria: Treatment of returnees upon arrival at Damascus InternationalAirport and international land border crossing points, including failed refugee claimants, people who exited the countryillegally, and people who have not completed milita- ry service; factors affecting treatment, including age, ethnicity andreligion [2014- December 2015], January 19th, 2016, Available at: http://www.ecoi.net/local_link/320204/445626_en.html, Accessed: 7th October 2016

Amnesty International, It breaks the human - torture, disease and death in Syria’s prisons, 2016, p. 16, Available at: https://www.amnesty.org/en/documents/mde24/4508 /2016/en/, Accessed: 7th October 2016

Amnesty International, It breaks the human - torture, disease and deathin Syria’s prisons, 2016, p. 14, Fn. 23, Available at: https://www.amnesty.org/en/documents/mde24/4508/2016/en/,letzter Accessed: 7th October 2016

Human Rights Council, 33rd session, Report of the Independent International Commission Inquiryon the Syrian Arab Re- public, August 11th, 2016, UN-Doc A/HRC/33/35, verfügbar unter: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/178/60/PDF/G1617860.pd..., Accessed: 7th October 2016

UNHCR, Erwägungen zum Schutzbedarf von Personen, die aus der Arabischen Republik Syrien fliehen, 4. Aktualisierte Fas- sung, November 2015, p. 11-14, Available at: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y..., Accessed: 7th October 2016

Schweizerische Flüchtlingshilfe, Schnellrecherche der SFH- Länderanalyse vom 10. September 2015 zu Syrien: Reflexverfolgung, Available at: https://www.fluechtlingshilfe.ch/assets/herkunftslaender/mittlerer-osten... tralasien/syrien/150908-syr-reflexverfolgung.pdf, Accessed: 7th October 2016

Süddeutsche Zeitung of 23rd May 2016, p. 7

Amnesty International, It breaks the human - torture, disease and death in Syria’s prisons, 2016, p. 37 ff., Available at:://www.amnesty.org/en/docu-ments/mde24/4508/2016/en/, Accessed: 7th October 2016

Human Rights Watch, If the Dead could speak - Mass Deathsand Torture in Syria’s Detention Fecilities, Dezember 2015, Available at: https://www.hrw.org/report/2015/12/16/if-dead-could- speak/ mass-deaths-and-torture-syrias-detention-facilities, Accessed: 7th October 2016

Bundesministerium des Innern, Verfassungsschutzbericht 2015, p. 263 f.

Ministerium des Innern und für Sport (Rheinland-Pfalz), Verfassungsschutzbericht 2015, p. 82

Staatsministerium des Innern (Freistaat Sachsen), Verfassungsschutzbericht 2015, p. 236

Landesamt für Verfassungsschutz (Freie und Hansestadt Hamburg), Verfassungsschutzbericht 2015, p. 215

Hessisches Ministerium des Innern und für Sport, Verfassungsschutz in Hessen, Report 2015, p. 162

The New York Times of 23rd September 2016, ‚Doomsday Today inAleppo’: As- sad and Russian Forces Bombard City, Available at: http://www.ny- times.com/2016/09/24/world/middleeast/aleppo-syria-airstrikes.html, Accessed: 7th October 2016

Süddeutsche Zeitung of 24th September 2016,Massive Luftangriffe gegen Aleppo, Available at: http://www.sueddeutsche.de/news/politik/konflikte-massive-luftangriffe-gegen-aleppo-dpa.urn-newsml-dpa-com-20090101-160924-99-573005, Accessed: 7th October 2016

Tagesschau vom 27th September 2016, Auf Luftangriffe folgt Bodenoffensive, Available at: https://www.tagesschau.de/ausland/syrien-aleppo-offensive-101.html, Accessed: 7th October 2016

The New York Times of 30th September 2016, Russia Fighting in Syria for a Year, Still at Odds With US, Available at: http://www.nytimes.com/aponline/2016/09/30/us/politics/ap-us-united-states-russia.html, Accessed: 7th October 2016

Spiegel-Online of 1st October 2016, Luftangriffe in Syrien - Krankenhaus in Aleppo bombardiert, Available at: http://www.spiegel.de/politik/ausland/syrien-krankhaus-in-aleppo-bombard..., Accessed: 7th October 2016

The New York Times, Tension With Russia Rises as US Halts Syria Negotiations, Available at: http://www.nytimes.com/2016/10/04/world/middleeast/us-sus pends-talks-with-russia-on-syria.html, Accessed: 7th October 2016

UNHCR, Global Trends. Forced Displacementin 2015, June 20th, 2016, S. 21; Available at: https://www.uno-fluechtlingshilfe.de/fileadmin/redaktion/Infomaterial/gl..., Accessed: 7th October 2016

Case Law Cited: 

Germany - BVerwG, judgement of 6th March 1990 - 9 C 14.89 -,BVerwGE 85, 12 Germany - OVG Rheinland- Pfalz, resolution of 15th September 2016 - 1 A10655/16.OVG

Germany - VG Stuttgart, judgement of 15th March 2013 - A 7 K2987/12 Germany - BVerfG, Chamber’s order of 21st April 2016 - 2 BvR 273/16 Germany - BVerfG, Chamber’s order of 12th March 2008 - 2BvR 378/05

UK - KB (Failed asylum seekers and forced returnees) Syria CG v. Secretary of State for the Home Department, UKUT 00426 (IAC)

L.M. and Others v. Russia (nos. 40081/14, 40088/14 and 40127/14), 15 October 2015

Germany - BVerwG, resolution of 22nd February 1996- 9 B 14.96 -, DVBl. 1996, 623 Germany - OVG Sachsen-Anhalt, judgement of 18th July 2012 - 3 L 147/12 Germany - VG Regensburg, judgement of 29th June 2016 - RO 11 K 16.30707

Germany - OVG Nordrhein-Westfalen, resolution of 5th September 2016 - 14 A 1802/16.A Germany - OVG Nordrhein-Westfalen, resolution of 7th May 2013 - 14 A 1008/13.A Germany - OVG Nordrhein-Westfalen, resolution of 13th February 2014 - 14 A 215/14.A

Germany - VG Köln, judgement of 23rd June 2016 - 20 K 1599/16.A Germany - VG Regensburg, judgement of 29th June 2016 - RO 11 K 16.30707 Germany - VG Meiningen, judgement of 1st June 2016 - 1 K 20205/16 Me

Germany - VG Regensburg, judgement of 6th July 2016 - RN 11 K16.30889 Germany - VG Berlin, resolution of 20th July 2016 - VG 23 K 486.16 A Germany - VG Düsseldorf, court order of 10th August 2016 - 3 K 7501/16.A

Germany - VG Schleswig-Holstein, court order of 15th August 2016 - 12 A 149/16 Germany - VG Köln, judgement of 25th August 2016 - 20 K 664/15.A Germany - VG Würzburg, judgement of 7th September 2016 - W 2 K16.30603

Germany - VG Regensburg, judgement of 29th June 2016 - RO 11 K 16.30707 Germany - VG Aachen, judgement of 11th January 2012 - 9 K 1698/10.A Germany - VG Regensburg, judgement of 29th June 2016 - RO 11 K 16.30707

Germany - VG Regensburg, judgement of 29th July 2016 – RO 11 K 16.30707 Germany - VG Meiningen, judgement of 27th March 2014 - 1 K 20092/12 Me Germany - OVG Sachsen-Anhalt, judgement of 18th July 2012 - 3 L 147/12

Germany - BVerwG, judgement of 16th April 1985 - 9 C109.84 -, BVerwGE 71, 180 Germany - BVerwG, judgement of 27th April 2010 - 10 C 5.09 -, BVerwGE 136,377 Germany - BVerwG, judgement of 1st March 2012 - 10 C 7.11

Germany - VGH Baden-Württemberg, judgement of 19th June 2013 - A 11 S 927/13 Germany - VGH Baden-Württemberg, resolution of 29th October 2013 - A 11 S 2046/13 Germany - OVG Berlin-Brandenburg, resolution of 9th January 2014 - OVG 3 N 91.13

Germany - HessVGH, resolution of 27th January 2014 - 3 A 917/13.Z.A Germany - VG Regensburg, judgement of 14th March 2013 - RN6 K 12.30059 Germany - VG Stuttgart, judgement of 15th March 2013 - A 7 K 2987/12

Germany - VG Kassel, judgement of 2nd July 2013 - 5K 200/13.KS.A Germany - VG Saarland, judgement of 16th October 2013 - 3 K 986/13 Germany - VG Aachen, judgement of 21st November 2013 - 9 K 1844/13.A

Germany - VG München, judgement of 9th July 2014 - M 22 K 14.30752 Germany - VG Gießen, judgement of 17th July 2014 - 2 K 3472/12.GI.A Germany - VG Regensburg, judgement of 9th September 2014 - RN 1 K 14.30205

Germany - VGFrankfurt (Oder), judgement of 26th September 2014 - 3 K 1489/13.A Germany - VG Augsburg, judgement of 25th November 2014 - Au2 K 14.30422 Germany - VG Köln, judgement of 18th 2015 - 20 K 4052/14.A

Germany - OVG NRW, resolution of 9th July 2012 - 14 A 2485/11.A Germany - VG München, judgement of 9th July 2014 - 22 K 14. 30752 Germany - VG Trier, judgement of 14th June 2016 - 1 K 1105/16.TR

Germany - VG Trier, judgement of 16th June 2016 - 1 K 1576/16.TR Germany - BVerwG, judgement of 30th October 1990 - 9 C 60.89 -, BVerwGE 87, 52 Germany - BVerwG, judgement of 5th 1991 - 9 C118.90 -, BVerwGE 89, 16

Germany - BVerwG, order for reference of 7th February 2008 - 10 C 33.07 -, DVBl. 2008, 118 Germany - BVerwG, judgement of 23rd July 1991 - 9 C 154.90 -, BVerwGE88, 367 Germany - BVerwG, judgement of 23rd February 1988 - 9 C 32.87 -, DVBl. 1988, 653

Germany - BVerwG, judgement of 15th March 1988 - 9 C 278.86 -, BVerwGE79, 143 Germany - VG Regensburg, judgement of 29th June 2016 - RO 11 K 16.30707 Germany - BVerwG, judgement of 18th December 2008 - 10 C 27/07 -, BVerwGE 133, 31