Germany – Administrative Court Berlin, 11 September 2016, 33 K 152.15 A

Country of Decision:
Country of Applicant:
Date of Decision:
11-09-2016
Citation:
33 K 152.15 A
Court Name:
Administrative Court Berlin
Relevant Legislative Provisions:
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 78
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 13
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 14
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 15
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 17
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 16
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003 > Article 20
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 3
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 3
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 10
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 18
European Union Law > EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011 > Article 12
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 33
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 40
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 46
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 51
National / Other Legislative Provisions:
Germany - AsylvfG (Asylum Procedure Act) - § 3
Germany - AsylvfG (Asylum Procedure Act) - § 4
Germany - AsylvfG (Asylum Procedure Act) - § 27a
Germany - AsylvfG (Asylum Procedure Act) - § 71a
Germany - AsylvfG (Asylum Procedure Act) - § 60(1)
Germany - Code of Administrative Court Procedure - Art 113(1)(1)
Germany - Code of Administrative Court Procedure - Art 102
Germany - Code of Administrative Court Procedure - Art 6
Germany - AsylvfG (Asylum Procedure Act) - § 26a
Germany - AsylvfG (Asylum Procedure Act) - §34a
Germany - Code of Administrative Court Procedure - Art 154(1)
Germany - Code of Administrative Court Procedure - Art 167(2)
Germany - AsylvfG (Asylum Procedure Act) - § 78(2)
Germany - Residence Act § 26 (1) S. 2 and 3
Germany - Residence Act § 29(3) S.1
Germany - Residence Act § 25(2) S.1
Printer-friendly versionPrinter-friendly version
Headnote: 

A renewed application for asylum in a second country is admissible if the nature of international protection applied for differs from the protection already granted. Deportation to the country of the first application or the country of origin is not to be taken into account in this situation.

Facts: 

The applicant, a Russian national of Chechen ethnicity, sought protection from political prosecution in the Russian Federation.  He firstly travelled to Poland and sought international protection, however he was denied recognition of refugee status and was only granted subsidiary protection status. Following this, he then travelled to Germany and on 9th November 2009 applied for asylum. In response to this application, the Federal Office stated that his application for asylum was inadmissible on the basis of Poland's competence to deal with the asylum application and ordered his deportation to Poland. The applicant appealed this decision. 

Decision & Reasoning: 
The Court, firstly, held that it was authorised to decide without an oral hearing due to the consent of both parties and the fact that the case had been discussed at length previously. 
The complaint is admissible and justified (§ 102 VwGO). 
 
1. The obligation for the Federal Office of Migration and Refugees to re-examine the case is admissible and justified. 
 
The Federal Office erred in its application of the law by ruling that the asylum application had been inadmissible in its entirety. The chamber held that the nature of the international protection granted must be differentiated. It is clear from the defendant's file that in Poland (merely) the subsidiary protection (Article 13-14 of the Qualification Directive: German law: § 4 Asylum Procedure Act) and not the refugee status (Articles 15-17 Qualification Directive, in German law: § 3 Asylum Procedure Act) was granted. Nevertheless, this does not yet in itself lead to a (renewed) decision as to the applicant’s request for refugee status that is to be treated as a second application.
 
As such, Article 18 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights) guarantees the right to asylum under the Geneva Convention on Refugees and Unions.
According to the Article 78 (1) of the Treaty on the Functioning of the European (TFEU), which is incorporated, the European Union is to ensure that an appropriate status is offered to all third-country nationals who need international protection. It follows from the Asylum Procedure Directive 2013 and the Qualification Directive 2011, that a person seeking protection is entitled to a Union right to have his application for refugee status reviewed. This is the case where he has already been granted subsidiary protection and even though the application consists in a further request for refugee status.
 
Article 10 (2) of the Asylum Procedure Directive 2013 establishes a two-step system when reviewing an application for international protection. During this review, the asylum authority shall first determine whether the applicant fulfils the conditions for recognition as a refugee. If this is not the case, it should be determined whether the applicant is entitled to subsidiary protection. A legal remedy in respect of refugee status is only to be regarded as inadmissible where the subsidiary protection offered by the Member State concerned carries the same rights and benefits as the refugee status (Article 46 (2) of the Asylum Procedure Directive 2013). Therefore, according to Article 46 (2) of the Asylum Procedure Directive, the refugee has the right to have his application for refugee protection decided by one of the Member States even if he has already been recognized as a beneficiary of subsidiary protection.
An exception of a member state’s obligation to grant a third-country national or stateless person refugee status in the event that the conditions are fulfilled, because the protection-seeking person has already received subsidiary protection, is not evident in the qualification directive 2011 (see, in particular, Article 12 (1) Qualification Directive 2011). 
 
2. The Appeal has been allowed. 
 
The decision of the Federal Office that the application for asylum is inadmissible is unlawful and infringes the applicant’s rights as per the above findings (§ 113 (1) S. 1 of the Code of Administrative Court Procedure).
 
This is because, irrespective of the question whether and under which circumstances the Dublin II Regulation or Dublin III Regulation justify a general subjective right of the applicant for asylum,  Article 3 and article 16 of the Dublin II Regulation or more specifically article 3 (1) and article 18 (1) of the Dublin III Regulation provide at least a subjective right to the applicant to have his application reviewed by any member state (see Administrative Court Berlin, decision from 31 October 2014 – 33K 155.14 A–, juris, Rn. 24; in connection please see Administrative Court Berlin, decision from 19. March 2014 – VG 33 L 90.14 A –, juris).
 
Thus, a deportation to Poland on the basis of § 34a read in conjunction with section 26a of the Asylum Procedure Act could not be considered. A deportation of the plaintiff on the basis of § 34a read in conjunction with section 27a of the Asylum Procedure Act is, in any event, is excluded on the basis of the transfer of responsibility.
 
The defendant is obliged, on the basis of the decision of the Federal Office for Migration and Refugees of 17 April 2015, to review again the applicant's application for asylum of 9 November 2009, taking into account the legal position of the court.
 
Outcome: 

Appeal granted.

Observations/Comments: 

Administrative Court Berlin, 4. March 2016 · Az. 23 K 323.14 A.

This case summary was written by Wendy Brandt, a BPTC student at BPP University.

This case summary was  proof read by Christian J. Freuling, a GDL student at BPP University.  

Case Law Cited: 

Germany - Administrative Court Berlin, decision from 19. March 2014 – VG 33 L 90.14 A

Germany - Administrative Court Berlin, decision from 31 October 2014 – 33K 155.14 A