Syria Remains Unsafe Despite Misleading Media Attention on German Court Ruling
In August, the Higher Administrative Court (OVG) Münster ruled that Syria is no longer generally unsafe, prompting a wave of media outcry. Many outlets have portrayed this ruling as a turning point for refugees and migrants, raising alarm among Syrians who fear deportation. However, the actual ruling is far more nuanced than the media suggests. While the OVG Münster decision may influence future asylum cases, it does not signal an immediate change in policy in Germany, nor does it pave the way for deportations to Syria.
The Facts of the Case
The case before the OVG Münster concerned a Syrian plaintiff who arrived in Germany in 2014. He was denied refugee status and subsidiary protection by the Federal Office for Migration and Refugees (BAMF). The decision was based on his prior conviction in Austria for multiple counts of smuggling people from Turkey to Europe. He denied these charges but was ultimately convicted in a final ruling, for which he had already served his sentence.
Although the plaintiff was denied refugee status and subsidiary protection, he was granted some protection. He was accorded international protection by the BAMF based on the prohibition of torture grounded on the principle of non-refoulement, which amounts to a ‘deportation ban’ under German law. This means that because of the ongoing risk of torture and other forms of inhuman and degrading treatment, deportations to Syria would violate Article 3 of the European Convention on Human Rights and continue to be barred. The plaintiff was therefore allowed to stay in Germany to avoid deportation to Syria.
Since the deportation ban is the lowest protection status under which access to several rights is limited, including family reunification, the plaintiff claimed that his rights were violated. He went to court seeking a legal status that would provide him with more robust protections – refugee status at best, or at least subsidiary protection. A lower Administrative Court initially ruled in his favor, granting him refugee status, but the BAMF appealed to the OVG Münster. The OVG Münster overturned the lower Administrative Court's decision, siding with the original decision issued by the BAMF. The OVG Münster denied the plaintiff both refugee status and subsidiary protection, maintaining the already granted protection under the deportation ban.
As a rule, after the BAMF’s initial asylum decision, the asylum seeker can file an action before a lower administrative court. An appeal against the lower court’s ruling is heard before a higher regional court, such as the OVG Münster. An appeal against a higher administrative court’s judgment must be declared admissible first before proceeding to the Federal Administrative Court. In the present case, the OVG declared an appeal inadmissible because its judgment did not derogate from case law. The only possible action for the plaintiff in the present case would have been to challenge the inadmissibility decision; however, it had no prospects of success.
The OVG Münster’s Ruling
In its 80-page long judgment, the Court analyzed the different bases for international protection potentially available to the plaintiff. It denied his appeal for refugee status on the grounds that he faced no credible threat of persecution in Syria, as well as due to his prior conviction, which excludes him from receiving refugee status.
The OVG Münster then turned to subsidiary protection. According to Section 4 (1) of the German Asylum Act, there are three bases for subsidiary protection: (1) a risk of being subjected to the death penalty; (2) torture or inhuman treatment; or (3) indiscriminate violence in situations of armed conflict. The majority of Syrians granted this protection by the BAMF are protected due to the risk of torture or inhuman treatment in Syria. However, the OVG Münster’s decision focused largely on violence in conflict, i.e. the third option.
The OVG Münster analyzed different sources from state agencies as well as human rights organizations. It concluded that there is no longer a “serious individual threat to the life or physical integrity of civilians as a result of arbitrary violence in the context of a domestic conflict,” not only in Al-Hasakeh but also generally across Syria. The OVG Münster thus found that Syria is “no longer” considered generally unsafe for the purposes of subsidiary protection concerning conflict-related violence. While this conclusion is concerning, it is somewhat attenuated by the fact that the German asylum authorities had already stopped granting protection based on the risk related to the civil war.
In its decision, the BAMF acknowledged that returned Syrians still face a risk of torture and inhuman treatment, generally granting subsidiary protection on this alternative. On appeal, however, the OVG Münster rejected this protection status as well. It is this last conclusion that relies on a thin factual basis and warrants further examination.
Selective Gathering of Facts
The OVG Münster selectively gathered facts in its judgment on the treatment of Syrian returnees and undervalued critical information from reputable sources such as the German Federal Foreign Office, the European Union Asylum Agency (EUAA), Amnesty International, and Human Rights Watch. For instance, the Court dismissed Amnesty International's 2021 report, which detailed the experiences of 66 returnees whose testimonies were corroborated by experts, and Human Rights Watch's findings from 65 interviews with returnees. The OVG Münster deemed the number of interviews too small to be a representative sample of the 280,000 Syrians who returned between 2016 and 2021. The OVG Münster did not indicate however which number of interviews would suffice to guarantee a reliable analysis by human rights organizations, nor did it adequately weigh the credibility of the evidence presented in the reports. The OVG Münster’s dismissal of the evidence therefore may have undervalued the potential risk to the applicant presented in the various reports.
The dismissal becomes even more questionable when contrasted with the evidence on which the Court based its conclusion on the treatment of Syrian returnees: a single report from the Danish Immigration Service (DIS). Without further assessing the context of the DIS report, the OVG Münster concluded it was “plausible because [it was] close to reality” that Syrian returnees would not face persecution upon return. Moreover, the Court selectively quoted from the annexed meeting minutes, while excluding information that contradicted its position. There is little further information as to how the judges ascertained the realities on the ground in Syria. The OVG Münster also failed to substantiate why the DIS should be considered a neutral and reliable source. According to several reports, Denmark has increased its efforts to refuse Syrians access to protection and residence and has already withdrawn the protection status of many of them. The DIS has also been publicly called out by civil society actors for their misuse of information.
German courts have previously been criticized for selectively referencing country reports in their rulings on Syria to justify the positions they have adopted. However, this judgment raises serious concern about a double standard by the OVG Münster by dismissing extensive information available by civil society and ruling on a thin factual basis instead. The OVG Münster’s reasoning is regrettable, contrary to a well-established factual record, and should be rejected by other German and European courts.
No Part of Syria is Safe for Return
The OVG Münster’s assertion that Syria is not generally unsafe (i.e. that it is safe) even on the basis of indiscriminate violence may have significant implications in Germany and beyond. The notion that Syria should be considered safe is gaining traction across the EU, with several member states pushing for parts of Syria to be recognized as “safe” on a political level. This ruling has fueled the debate, providing perceived grounds for claims that courts are beginning to pave the way for deportations. However, it bears repeating that the Court did not allow for deportations to Syria and any assertion that it did is factually incorrect. Addressing this narrative is crucial, as misinterpretations of the judgment risk setting a dangerous precedent that could undermine the protection rights of Syrians across Europe.
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