A Syrian who received subsidiary protection but not asylum had filed a lawsuit against German authorities. The European Court of Justice found that fleeing military service in a violent regime could be seen as sufficient grounds for asylum.
The European Court of Justice (ECJ) issued a preliminary ruling on whether draft evaders should be entitled to asylum on Thursday.
The judges found that "there is a strong presumption" that people escaping military service in violent regimes are entitled to asylum, but that it is still up to national authorities to ascertain whether individuals qualify for asylum.
Only subsidiary protection
A young Syrian had filed a lawsuit against German asylum authorities. The man had fled Syria in 2014, after he finished his university studies, because he expected to be drafted into the Syrian military.
In Germany, he had received subsidiary protection, but not full asylum status -- like many other Syrians who fled compulsory military service for the Assad regime. People with asylum have more rights than people with subsidiary protection; they receive longer stay permits and can more easily apply for family reunification.
Grounds for asylum
Asylum authorities in Germany decided that the man did not qualify for asylum. They said he did not face persecution on political grounds because of his race, nationality, political opinion, fundamental religious conviction or membership of a particular social group.
The ECJ disagreed with this assessment.
In its ruling, the court wrote that "refusal to perform military service, particularly where it is punishable by heavy sanctions, suggests that there is a high degree of conflict in political or religious values and opinions between the person concerned and the authorities of the country of origin."
The German asylum office BAMF had argued that draft evaders could only be given asylum based on political persecution if they had made their opposition to the government or joining the military known before they fled the country.
But the judges at the ECJ disagreed. They said that "in the context of armed conflict, particularly civil war, and where there is no legal possibility of avoiding military obligations, it is highly likely that the authorities will interpret the refusal to perform military service as an act of political opposition, irrespective of any more complex personal motives of the person concerned."
Military draft in Syria
In Syria, men between the ages of 18 and 42 can be drafted into the military, they usually have to serve for one and a half years. Draft evasion is a criminal offense. There is no process through which people can object to joining the military and perform alternative civilian services. According to the UN refugee agency, "draft evaders in detention face a risk of torture and other forms of ill-treatment."
The young Syrian had first filed a lawsuit at the local administrative court in Hanover, Germany. That court had asked the ECJ to weigh in on the matter. Now, the case will go back to the Hanover court. But that court is obliged to follow the directives laid out in the ECJ judgement.
The decision in this case could also affect future and ongoing asylum applications by other men who fled Syria so they would not have to serve in the military. The Court of Justice of the European Union (which encompasses the ECJ) said on Twitter that the decision "may give rise to entitlement to recognition as a refugee."
with AFP, dpa, KNA