Germany – Administrative Court Administrative Court Oldenburg, 6 November 2017, 2017, 15 A 7522/17

Country of Decision:
Country of Applicant:
Date of Decision:
06-11-2017
Citation:
15 A 7522/17
Court Name:
Administrative Court of Oldenburg
National / Other Legislative Provisions:
Germany - AsylG (Asylum Act) - Article 13
Germany - AsylG (Asylum Act) - Article 14
Germany - AsylG (Asylum Act) - Article 21
Germany - AsylG (Asylum Act) - Article 23
Germany - VwGO (Code of Administrative Court Procedure) - Section 42 (2)
Germany - VwGO (Code of Administrative Court Procedure) - Section 68
Germany - VwGO (Code of Administrative Court Procedure) - Section 75
Germany - VwGO (Code of Administrative Court Procedure) - Section 101 (2)
Germany - VwGO (Code of Administrative Court Procedure) - Section 113 (5)
Germany - GVG (Courts Constitution Act) - Section 198 (1)
Germany - GG (Basic Law) – Art. 16a
Germany - GG (Basic Law) – Art. 19 (4)
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Headnote: 

Concerning the criteria of “filing the application” in § 75 S. 2 VwGO, the informal request for asylum according to § 13 AsylG must be taken into consideration as the relevant date and not the formal lodging of the application according to § 14 AsylG when the Federal Office fails to provide an opportunity to lodge an application. Otherwise, the work overload that the Federal Office is facing, would be a detriment for the applicant, both concerning the scheduling for the formal application and concerning the examination of the application. 

Facts: 
The five-person family of Iraqi origin entered Germany either on the 13th or 14th of October 2015 and were registered as asylum seekers by the Federal Office for Migration and Refugees (BAMF) on the 14th of December 2015. 
 
During the time between the 23rd of August 2016 and the 14th of July 2017, three personal hearings have taken place (concerning the Member State responsible for the procedure, concerning the reasons for persecution and concerning the presenting of a fake driver’s license). 
 
There was no decision made on the application for asylum. The applicants filed a complaint against failure to act on the 26th of September 2017.
 
Decision & Reasoning: 

The admissibility requirements of § 75 S. 2 VwGO are met: Within the scope of the Asylum Procedures Directive, asylum seekers have the right to a decision made by the public authorities based on a personal hearing as well as the right to judicial review of the decision.

The time limit requirement of § 75 S. 2 VwGO concerning the earliest time for filing a complaint against failure to act is fulfilled, irrespective of whether the time limit began running with the informal request or with the formal application for asylum. By the time the complaint against the delayed decision was filed, the time limit had expired.

Which time limit for an examination and decision made by the Federal Office is appropriate according to § 75 S. 1 VwGO, depends on the individual circumstances of the case, in particular on its complexity and on the behavior by the parties.

The extreme and unusual increase in asylum applications in the years of 2015 and 2016 can constitute a sufficient reason for a delayed examination of certain cases by the Federal Office. However, this must be distinguished from the general obligation by the Federal Office to offer opportunities for the individual applicant to initiate an asylum procedure in the first place.

Otherwise, the work overload that the Federal Office is facing, would be a detriment for the applicant, both concerning the scheduling for the formal application and concerning the examination of the application.

The criteria which helps to determine which time limit is appropriate for the examination of an application can be derived from Art. 31 Asylum Procedures Directive which is however not directly applicable in this case due to the interim provision laid out in Art. 52 Asylum Procedures Directive.

According to Art. 31 (1) Asylum Procedures Directive, which contains criteria to define the appropriateness of a time limit, Member States shall ensure that the examination procedure is concluded within six months of the lodging of the application and this period can be extended for another period not exceeding a further nine months according to the requirements laid out in Art. 31 (3) Asylum Procedures Directive.

This time limit was exceeded by the Federal Office. Concerning the criteria of “filing the application” in § 75 S. 2 VwGO, the informal request for asylum according to § 13 AsylG must be taken into consideration as the relevant date (which was on the 14th of December 2015) and not the formal lodging of the application according to § 14 AsylG (which was on the 23rd of August 2016). This can be justified by the purpose of § 75 VwGO which is to deter the public offices from preventing or delaying legal protection granted by Article 19 (4) of the German Constitution. In a case like this, the obligations to be respected by the Federal Office already come into effect after becoming aware of the mere informal request for asylum.

It does not constitute a contradiction if Art. 31 (1) Asylum Procedures Directive talks about the “lodging of the application” as Art. 6 Asylum Procedures Directive indicates that a person who has made an application for international protection shall have an effective opportunity to lodge it as soon as possible. If the time difference between the first informal request for asylum and the formal lodging of the application is more than eight months, then these requirements laid out in Art. 6 Asylum Procedures Directive are not met.

On the relevant day of the judicial decision, the duration of the examination procedure amounts to almost 23 months. An exception according to Art. 31 (4) Asylum Procedures Directive where the examination procedure may be postponed when the determining authority cannot reasonably be expected to decide within the time-limits cannot be assumed here. Hence, the duration of the examination procedure is to be considered inappropriate. 

The legal obligation to make a decision results from Art. 16a (1) GG as well as from Art. 19 (4) GG. 

Outcome: 

The complaint against failure to act is successful. The Federal Office is obliged to make a decision on the application within three months after the court’s decision. 

Observations/Comments: 
This case summary was written by Merle Bannach
Case Law Cited: 

Germany - Federal Constitution Court (BVerfG), 2 May 1984

Germany - Federal Constitution Court (BVerfG), 12 July 1983

Germany - Federal Constitution Court (BVerfG), 25 February 1981 – 1 BvR 413/80

Germany - Federal Administrative Court (BVerwG), 11 July 2013 – 5 C 23.12 D

Germany - Administrative Court Munich, 22 February 2017 – M 17 K 16.32918

Germany - Administrative Court Osnabrück, 14 October 2015 – 5 A 390/15

Germany - Administrative Court Karlsruhe, 8 July 2016