(Dec. 17, 2019) On November 6, 2019, the Higher Administrative Court of Berlin-Brandenburg (OVG Berlin-Brandenburg) held that the German government must repatriate a German citizen who, in 2014, traveled from Germany to the territory held by the Islamic State (ISIS) in Syria, together with her three minor children.
Facts of the Case
In 2014, the mother and father traveled to Syria to the territory held by ISIS together with their two children. A third child was born there. All applicants have German citizenship. The children are currently eight, seven, and two years old. The family lived in Raqqa, the biggest city held by ISIS at the time. On January 21, 2019, the husband and the other applicants turned themselves in to American-Kurdish forces north of Baghuz. The mother and her children were brought to a guarded part of the Al-Hol camp, where persons without Syrian or Iraqi citizenship who were deemed to be ISIS supporters or members were held. The father was imprisoned by the Kurdish militia; his current place of detention is unknown. (OVG Berlin-Brandenburg paras. 2–4.)
The Federal Prosecutor General is investigating the mother for alleged membership in a foreign terrorist organization. However, more detailed information on the charge and the facts it is based on were not provided to the court. (Para. 5.)
On May 24, 2019, the mother and her children applied to the administrative court in Berlin to obligate the German government to grant them consular protection, meaning to issue travel documents and repatriate them to Germany. The German government made arrangements to repatriate the three minor children but refused to repatriate the mother. As a reason for the refusal, the federal government stated that there were national security and foreign policy concerns. The federal government however promised to ensure her safety in the camp. (Para. 7.)
The administrative court in Berlin ruled in favor of the applicants. The German government appealed the judgment to the Higher Administrative Court of Berlin-Brandenburg. (Paras. 8–14.)
The Higher Administrative Court of Berlin-Brandenburg confirmed the judgment of the lower court. It stated that it was irrelevant for this case whether the mother herself had a right to be returned by the German government derived from article 11 of the German Basic Law; article 3, paragraph 2 of Protocol No. 4 to the European Convention on Human Rights; article 12, paragraph 4 of the International Covenant on Civil and Political Rights (ICCPR); or the customary law principle of right to return. The Court reiterated that the state has a duty to protect derived from article 2, paragraph 2, sentence 1 in conjunction with article 1, paragraph 1, sentence 2 of the Basic Law. The situation in the camp constituted a danger to the life and limb of the children, and the state therefore had no discretion with regard to its duty to protect. As the children were not allowed to travel alone, the government was obligated to return them together with their mother. (Paras. 22, 23.)
The Court identified two reasons why the children could not travel without their mother. In general, the Kurdish administration did not separate children from their mothers and would not allow them to travel alone. Furthermore, the constitutional protection of the family codified in article 6, paragraph 1 of the Basic Law generally prohibits the state from returning the minor children without their mother, but this is a case-by-case decision based on factors such as the intensity of the family relationship, the age of the children, or the need of care of individual family members. The Court stated that, in the case at issue, the children are very young and dependent on the protection and care of at least one parent, especially because the father is not available. The situation in the camp and the separation from their father had already traumatized them. (Paras. 25–32.)
The Court held that the mother was a German citizen and that the government did not submit enough evidence that she constituted a concrete danger to public safety, which would allow an exception to article 6. In particular, the government did not provide evidence on her exact role in ISIS and how she would constitute a concrete danger to citizens living in Germany. A general danger that results from the return of ISIS fighters as pointed out by the Office for the Protection of the Constitution is insufficient. (Paras. 33–41.)
Furthermore, the Court ruled that domestic and foreign policy concerns could also not serve as a reason not to repatriate the mother together with her children. The government had not shown that the mother would soon be prosecuted before a national or an international court in Syria or Iraq, as her exact role was unknown. (Paras. 42–46.)
Lastly, the repatriation of the adult mother is also not impossible, in the opinion of the Court, even though the German government has no diplomatic or consular representation in Syria. The Court stated that the government had made arrangements with nongovernmental organizations to transfer the children to a transit country with German representation and send them to Germany from there, demonstrating that it was clearly possible to repatriate people to Germany. (Paras. 47–49.)
The decision is final and cannot be appealed.