Germany: Constitutional Court ruled that the refusal of legal aid for appeals against subsidiary protection by Syrian nationals was unlawful

Tuesday, August 29, 2017

On 29 August 2017, the Constitutional Court of Germany ruled in a case regarding Syrian nationals of Kurdish ethnicity who had been granted subsidiary protection after applying for international protection in Germany in 2015 and 2016. The applicants applied for legal aid in order to challenge the decision before the Administrative Court, arguing in essence that they should be granted refugee status instead. They argued, inter alia, that they had opposed the Assad regime and could be subjected to compulsory military service under that regime, justifying the granting of refugee status under the 1951 Refugee Convention (persecution on grounds of political opinion). The Administrative Court denied the requests for legal aid based on the limited prospect of success of the appeal (“merits test”).

The Constitutional Court found that the Administrative Court had decided on a complex issue within the legal aid procedure and without taking into account the lack of consistent jurisprudence on the matter. According to the Constitutional Court, the assessment of whether the applicants should be granted refugee status or subsidiary protection requires the competence of a specialised court and cannot, thus, be decided through a “merits test” for the granting of legal aid. Therefore, the Constitutional Court found that the lower court’s decision had violated the principle of “equality of legal protection” and sent the case back to the Administrative Court of Hamburg.

Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Meral Zeller, Communications Assistant at ECRE, for her kind assistance with translating this case.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.



Legal assistance / Legal representation / Legal aid
Refugee Status
Subsidiary Protection