Germany: Federal Office for Migration rejects asylum for Russian refusers

Russia, Belarus, Ukraine: What about the protection of refusers?

(17.02.2023) At the end of January 2023, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application of a Russian refuser who had evaded possible recruitment, writing in the decision: „It cannot be assumed with considerable probability that the applicant would be forcibly conscripted into the armed forces against his will.“

How could this be? As recently as September 2022, there was a rare cross-party agreement in Germany that Russian draft evaders, conscientious objectors and deserters should be protected. The BAMF, however, creates facts, rejects a draft evader ¬ and refers to arguments that have long been outdated. The question arises as to how many such decisions have been issued by the Federal Office for Migration, which so blatantly violate the rights of the applicants.

Outdated reasoning

The Federal Office’s reasoning reads in detail: „However, it cannot be assumed with any considerable probability that the applicant, a (40-plus-year-old) national of the Russian Federation who, according to his statements, has not  performed any military service and thus does not have any previous military knowledge or any other (militarily relevant) special knowledge, would be conscripted into the armed forces against his will at all. According to § 22 of the Federal Law ’On Conscription and Military Service’, all male Russian citizens between the ages of 18 and 27 are called up for compulsory service in the Russian army. On the basis of the available information, it does not appear that the Russian Federation would call up additional age groups beyond the above-mentioned age group for the armed forces in the context of a partial or general mobilisation, or that such a mobilisation would be imminent in the foreseeable future. Such mobilisation is also considered unlikely in other respects, especially as it would be incompatible with the Russian narrative of a planned, limited ’special operation’ and would be difficult to convey domestically.“ This decision was issued in January 2023, four months after the partial mobilisation was announced in Russia.

The rest of the factual situation is also assessed quite differently by organisations that have been working on these issues for many years. The International Fellowship of Reconciliation stated in an expertise for the United Nations in mid-October 2022: „ In practice, summons to conscripts are sent to the mailbox without a signature. The date of appearance may be indicated outside the draft periods. And instead of the specific purpose of the call, the summon indicates the general wording ‘clarification of data’. When visiting a Military commissariat in such a situation, a conscript can be called up for military service immediately on the day of the visit.“

Formally, according to the law, official personal delivered letters are required for registration, for muster and call up papers. The conscript must confirm receipt with his signature. This formal procedure is therefore no longer followed in Russia.

Contrary to what the BAMF claims, recruitment is also possible beyond the age of 27. On 25 May 2022, the Duma passed a law whereby men up to the age of 65 can also be conscripted into the army.

Raids and street checks for recruitment

During the partial mobilisation in September and October 2022, there were raids and street checks for recruitment, the expertise continues: : „Since the beginning of the mobilization, a widespread practice in large cities is that police officers stop men on the streets, check their documents, and try to hand a subpoena. Lately, another practice was introduced in the form of raids. On October 9, the police came to the ‘heating center’ for the homeless in Moscow and detained several dozen people. There were also raids at workers’ dormitories. In St. Petersburg, police officers blocked exits of several residential buildings and handed out subpoenas.“ Moreover, during the recruitments, the authorities had no information about withdrawals or deferrals. This explains why even official Russian agencies conceded the figure of 9,000 illegally recruited in the course of the partial mobilisation. The actual number is unknown.

As a result of this practice, many men who are between 18 and 65 years old and can thus be recruited try to avoid any contact with the military authorities. They see the danger   of being  recruited and used in Ukraine at any time. Therefore, they decide to leave Russia before they have had any contact with the military. Thus, they become so-called military draft evaders.

EU member states must also find solutions for military draftees

Thus, the EU countries must not only develop new criteria for deserters with regard to asylum or another residence status, as the German government has done. It is also a matter of finding solutions for the large number of those who evaded the draft to military service. For if they have to return to Russia, they are subject to recruitment for a war that is illegal under international law.

As part of the project #ObjectWarCampaign funded by PRO ASYL, Connection e.V. has collected numerous facts and drawn conclusions and developed demands from them together with PRO ASYL.

Differences: desertion, draft evasion and conscientious objection

To understand and assess the legal background and asylum options, it is important to define the terms:

Most absconding military service conscripts are draft evaders. They have evaded the grasp of the military before possible recruitment.

In terms of numbers, deserters are significantly fewer. They have at least received a  their call-ups and are therefore considered soldiers. Deserters flee after receiving a draft or during military service.

Conscientious objection is a personal decision not to join the military. It is often declared to the authorities or the military. Conscientious objection has been recognised as a human right by the European Court of Human Rights in 2011.

Hundreds of thousands flee on all sides

In September 2022, Connection e.V. had presented a detailed analysis of how many men subject to military service have fled from Russia, Belarus and Ukraine. Such figures can only be estimates. There are no clear statistics on the number of people who have left the respective countries. It is not really known whether fleeing recruitment is their only or the decisive reason. It is also unknown how many of the refugees can claim exemptions in their country of origin.

Nevertheless, according to a conservative estimate, Connection e.V. concluded in September 2022 that more than 150,000 men subject to military service have left Russia, more than 145,000 men subject to military service have left Ukraine and more than 22,000 men subject to military service have left Belarus.

Under the same conditions, the result for February 2023 is as follows: For Russia, no new figures are available, so the estimate of more than 150,000 military service men having left the country remains. For Ukraine, the number of military service men who have come to Western Europe rises to 175,000. For Belarus, no new figures are available, so it remains at an estimated 22,000 military service men who have left the country.

Number of asylum applications by Russian conscientious objectors rises at low level

There has been a significant increase in the number of asylum applications from Russian refusers in Germany. Russia moved into the top 10 asylum seekers for the entire year in December 2022, meaning the numbers increased significantly over the course of 2022. According to the BAMF, more than 500 people from Russia made their first asylum application in both November and December 2022, up from 150 to 250 a month previously. It can be assumed that there is a connection here with the partial mobilisation in Russia in September 2022. In total, between March and December 2022, an estimated 600 men between the ages of 18 and 60 who were subject to military service submitted a first asylum application in Germany.

For Western Europe, Eurostat provides data on asylum applications. According to this, from January to June 2022, an estimated 1,200 men subject to military service had submitted an asylum application in one of the 27 Western European countries. This number is likely to have increased to 2,800 one year after the war began in February 2023. Applications for asylum from Belarusian nationals have barely changed in recent months, according to Eurostat, and range from 300 to 500 per month across Europe.

Dublin III Regulation

The Dublin III Regulation determines which Western European country in the Schengen area is responsible for the asylum procedure. Often, Russian or Belarusian draft evaders or deserters enter the country with a visa from another country, for example Finland, Poland, the Czech Republic, Croatia, Italy or Spain. Due to Dublin-III, this country is then usually responsible for processing the asylum application, even in cases where they would receive extensive support here in another country from more distant relatives or friends.

Main countries of refuge include Kazakhstan, Georgia and Turkey

However, only very few draft evaders and deserters from Russia and Belarus have fled to countries in Western Europe. The main countries of refuge are Kazakhstan, Georgia, Armenia, Turkey, Serbia and Israel. The main reason for this is the very restrictive handling of visa issuance by the countries of the Schengen area. The situation in the main countries of refuge is partly precarious. Turkey - and since the end of January also Kazakhstan - only grants Russian citizens a limited residence status of three months, which cannot be extended at will.

The situation is different for Ukrainian refusers. Like all other Ukrainian citizens, they have the right to enter the European Union without a visa and are granted at least a temporary humanitarian residence status under section 24 of the Residence Act. However, Ukraine closed the border to men subject to military service when the war began. At the end of 2022, it was reported that almost 12,000 suspected refusers were apprehended at the borders.

Legal framework: Conscientious objection and desertion in Russia, Belarus and Ukraine.

All three countries have compulsory military service, to which all men between the ages of 18 and 27 are subject. Russia has raised the age for possible conscription to 65, Ukraine to 60. Every person should have the right to apply for conscientious objection at any time. This is not guaranteed in any of the three countries.

In Russia and Belarus, an application is only possible until  having received a call-up. There is no right for reservists and soldiers to apply. For reviewing applications, this would have to be done by an independent body. In fact, however, in Russia and Belarus the military is involved in the decisions. In Belarus, the right is also limited to religious conscientious objectors.

Conscientious objectors would have to have the option of serving independently of military service. Belarus only provides for unarmed service in the military. In Russia, too, a change in the law has made it possible that conscientious objectors have to serve in the military.

Those who do not join the military face punishment of several years’ imprisonment. Desertion is prosecuted more severely, especially during a war.

In the separatist areas there is forced recruitment. There is no right to conscientious objection. Conscientious objectors are sent to the front or imprisoned.

Ukraine suspended the existing law on conscientious objection with martial law on 24 February 2022. Previously, members of ten small religious communities could apply. The suspension has deprived them of this right. Some conscientious objectors have been sentenced to several years in prison.

Asylum: Only few doors open

As a general rule, conscientious objection and desertion are not considered grounds for asylum. The case law of the higher courts points out that compulsory military service is a general state duty that affects all citizens (or at any rate all citizens of military age and, where applicable, of the male sex) equally; prosecution and punishment for a refusal is therefore classified as legitimate state action. According to the ruling of the European Court of Human Rights, prosecution for conscientious objection is only considered a violation of the European Convention on Human Rights by courts in individual cases, which means that only protection against deportation can be considered.

Only in the case of Russian deserters does the German Federal Ministry of the Interior see it differently, because it assumes that they are threatened with persecution for political reasons. In a communication of the Federal Ministry of the Interior of May 2022, it literally states that „it can be assumed that threatened acts of persecution are usually linked to a reason for persecution (§ 3b AsylG). Since even the term ‘war’, in relation to the attack on Ukraine, can be punished in the Russian Federation as an oppositional political statement, desertion - as an active statement against the conduct of war - can be considered an expression of an oppositional conviction.“

However, the Federal Ministry of the Interior’s communication explicitly goes on to state that Russian „draft evaders are not covered by the remarks“. PRO ASYL and Connection e.V. have been criticising this for months.

Refusal to participate in a war  violating international law

In the asylum procedures of Russian deserters and refuseniks, a regulation of European legislation is applied, the so-called Qualification Directive. Article 9 of this directive regulates who can be recognised as a refugee in the European Union. There is a passage that states that this is the case if there is a threat of prosecution for refusing to participate in wars that violate international law. Russian conscientious objectors, draft evaders and deserters face such prosecution. This could also be the case if, as Belarusian organisations have feared for months, Belarus also enters the war and sends its own troops to Ukraine. In case law, however, the question is raised under which circumstances this regulation applies.

The European Court of Justice, the highest court of the European Union, has already ruled on this twice. This has defined a number of conditions which, unfortunately, in view of the current situation, make it unlikely that protection can actually be achieved for those affected. This is because the persons concerned would have to have previously made a formal application for conscientious objection in their country, which was rejected or at least did not prevent them from being sent to the war zone as part of the fighting force. They would have to prove that they have been genuinely recruited and that there is a serious threat of deployment in the war. Hardly anyone will be able to meet these criteria.

Refugee protection in cases of political persecution or excessive punishment

In asylum jurisprudence, persecution for conscientious objection and desertion is only considered relevant if the act is considered a political act by the persecuting state or if there is excessive punishment. The Federal Ministry of the Interior qualified the former as a given in its statement of May 2022 with regard to deserters from Russia, as outlined above. If this is really going to be implemented in this way, then at least those who can prove to get the call up or to be deserted would have to receive refugee protection.

Draft evasion, on the other hand, is not interpreted in this way. The fear of possible recruitment for a war in violation of international law, if the person concerned is forced to return, is apparently not considered worthy of protection. Even a possible punishment - albeit to a lesser extent - has so far not led to a different assessment by the German authorities.

On the practice of the Federal Office for Migration

So far, Connection e.V. has only received two decisions dealing with asylum applications from military draftees from Russia. In one case, the applicant was recognised, but not because of the military draft, but because of his public political activities. The other, a military draftee over 40 years old, was rejected; the decision was quoted at the beginning of this text. The core thesis therein is: „It cannot be assumed with considerable probability that the applicant would be compulsorily conscripted into the armed forces against his will.“ Above it is explained why PRO ASYL and Connection e.V. consider this decision grossly negligent.

„Considerable probability” becomes decisive

A decisive point in the asylum procedure is the question of how likely the person concerned is to be recruited in Russia. So far, it can be assumed that this will be denied by the German authorities as a rule, even in view of reports showing that the partial mobilisation in October 2022 took place on an arbitrary basis and that there were several thousand cases in which men were wrongly recruited. Conscripts are also recruited on an arbitrary basis. Those affected will have to prove in each individual case that they of all people would have been conscripted with a very high probability.

Human right to conscientious objection also for Ukrainians

No one is talking about it yet, but in the future these issues will also affect men from Ukraine. As things stand at present, the humanitarian status for Ukrainian refugees will expire in two years. This may mean that Ukrainian refugees - and with them men liable for military service - will then have to return to Ukraine.

In the event of possible prosecution, they could only plead that there was no possibility for them to declare conscientious objection in Ukraine. Already in 2014 and 2015, when several thousand came to Germany from Ukraine, it was determined by German authorities and courts that this was not a sufficient reason to claim protection of any kind.

Demands on politics

The practice of the BAMF does not correspond to the dramatic and life-threatening situation in which those seeking protection find themselves. In view of the current flight movements from Russia, Belarus and Ukraine, PRO ASYL and Connection e.V. demand:

- Russian citizens should also be able to apply for admission to the European Union from countries outside Russia. An unbureaucratic solution is needed to protect them from deportation from another country back to Russia. Humanitarian visas are an option that the German government and the other EU states should make greater use of. This is the only way to give people the chance to come to Germany legally and ask for protection here. This must also apply to refugees of other nationalities.

- Borders must be opened! Refugees must have the possibility to reach countries that can grant them a safe stay. Current visa regulations prevent many from reaching safe countries. Reception of those seeking protection can only succeed if illegal pushbacks are stopped and people are given access to a fair asylum procedure.

- Regarding the granting of asylum or other residence status, EU countries must not only develop criteria for deserters, but above all find solutions for the large number of military draftees, e.g. for draft evaders. They would be subject to recruitment for war if forcibly returned to Russia.

- The EU should adopt a reception programme so that those Russian citizens who have turned away from their country’s government at great risk are given opportunities for training and employment.

- Ukrainian conscientious objectors who face multi-year prison sentences as a result of their decision also deserve the EU’s support and must be given the chance of protection here. Ukraine should be called upon to implement the human right to conscientious objection.

Rudi Friedrich, Connection e.V.: Germany - Federal Office for Migration rejects asylum for Russian refusers www.Connection-eV.org, February 17, 2023

Keywords:    ⇒ Asylum   ⇒ Belarus   ⇒ CO and Asylum   ⇒ Conscientious Objection   ⇒ Desertion   ⇒ Draft Evasion   ⇒ Russia   ⇒ Ukraine