The Court of Justice of the European Union (CJEU) on Nov. 19 ruled that foreign military draft evaders may be entitled to asylum in the EU. In what was technically a preliminary ruling in an ongoing case, the court held that there is a "strong presumption" that people escaping military service under authoritarian regimes are entitled to asylum, if evasion is motivated by "political opinions, religious beliefs or...by membership of a particular social group." The ruling follows a referral from the Administrative Court (Verwaltungsgericht) of Hanover, Germany, seeking an interpretation of the EU Directive on International Protection. The Directive provides the standards for the qualification of third-country nationals or stateless persons to be beneficiary of international protection in the European Union.

The referral comes as a result of an action filed by a Syrian national against the German Federal Office for Migration & Refugees in the Hannover court, challenging the denial of his asylum application. The applicant had fled Syria in 2014 in order to avoid being drafted into the Syrian military. The migration office had refused the application on the grounds that applicant "had not himself been subject to persecution which induced him to leave and, since he only fled the civil war...would not have to fear persecution if he returned to Syria." The migration office further argued that regardless of possible persecution, the applicant "did not qualify for any of the five reasons for persecution which may give rise to entitlement to recognition as a refugee, namely race, religion, nationality, political opinion or membership of a particular social group."

The CJEU rejected this argument, finding that:

In a number of situations, refusal to perform military service reflects an expression of political opinions—whether they consist of the rejection of any use of military force or of opposition to the policy or methods of the authorities of the country of origin—or of religious beliefs, or is motivated by membership of a particular social group.

Thus, there is a strong presumption that refusal to perform military service under the conditions of the case submitted to the Court relates to one of the five reasons which may give rise to entitlement to recognition as a refugee.

While the case has been sent back to the Administrative Court of Hannover to be decided on the merits, the German court will be obliged to follow the interpretation of the directives laid out in the CJEU ruling.

The decision of the EU court in this case could also affect future and ongoing asylum applications by other men who have fled Syria in order to escape the military draft. In Syria, male citizens between the ages of 18 and 42 are obliged to perform military service, which may last from 18 to 21 months. Failure to comply with the provision constitutes a criminal offence under Syrian law.

From Jurist, Nov. 22. Used with permission.