AG Opinion on the interpretation of refusal to perform military service as grounds of persecution

Thursday, May 28, 2020

On 28 May 2020, Advocate General Sharpston published her opinion in Case C-238/19 on the interpretation of the Qualification Directive and conscientious objection from military service as a ground of persecution.

The case concerns EZ, a Syrian national who arrived in Germany in 2015. He requested a deferral for his military service for fear that he would take part in the civil war. This deferral was granted, but he subsequently left Syria in November 2014, with his national service due to start in 2015. His application for asylum in Germany was rejected on the grounds that he had not suffered persecution in his country of origin, although he argued that draft evaders were liable to heavy sanctions. The referring court stayed proceedings and referred several questions the CJEU to obtain guidance on the interpretation of the Qualification Directive and, inter alia, the causal connection between acts of persecution and reasons for persecution.

AG Sharpston first observed that the individual concerned must have a well-founded fear of persecution and that the Qualification Directive requires an individual assessment of the need for international protection which takes account of, inter alia, relevant factors relating to the country of origin, statements and documents presented by the applicant, and their individual circumstances. In relation to questions 4 and 5, AG Sharpston observed that it is not plausible to suggest that for each form of persecution that it is unnecessary to establish a causal link between acts of and reasons for persecution and, as the CJEU has previously found, to do so is contrary to the purpose of the Qualification Directive.

On the applicant’s conscientious objection to performing military service, the AG opined that he had effectively expressed a political opinion, and that it is clear from Article 10(1)(e) that such an opinion does not need to be manifested externally. However, a fear of abstract persecution as a result of draft evasion does not automatically amount to a well-founded fear of persecution and it is therefore legitimate for the competent national authorities to ascertain the nature of the individual’s objections, taking into consideration, inter alia, the objective and subjective factors indicating a well-founded fear of persecution. However, in such an assessment it would be unreasonable to expect applicants to provide evidence that they have publicly expressed disagreement with the national authorities.

Furthermore, AG Sharpston opined that Article 9(2)(e) of the Qualification Directive does not automatically establish that a person concerned has a well-founded fear of persecution because they hold a political opinion within the meaning of Article 10(1)(e). It is for the national authorities to establish a causal link which assesses, inter alia, whether the state is conducting a war and the methods employed; the treatment of those who refuse military service; and the existence of the absence of alternatives.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Assessment of facts and circumstances
Individual assessment
Persecution Grounds/Reasons
Well-founded fear