Germany – Administrative Court Berlin, 15. March 2019, VG 23 L 706.18 A

The complaint at the Administrative Court of Berlin was successful.

The applicants are authorized to file a complaint because Articles 9 and 17 II Dublin-III regulation grant them individual, subjective rights. Although Art. 27 Dublin-III regulation only grants a right to an effective remedy against a transfer decision, the provision does not preclude a higher national standard of legal remedies. Also Art. 47 CFREU requires effective legal remedies.

Germany is responsible for examining the applications of applicants 1 and 2 under Art. 9 Dublin-III regulation. All requirements of the provision are met: They are the parents of the underage applicant 4 and thus family members under Art. 2 (g) Dublin-III regulation. Applicant 4 was granted subsidiary protection status in Germany. All applicants have expressed their wish to be reunited in writing.

The responsibility of Germany did not cease because of an expiry of a deadline. The Greek authorities met the three-month-deadline of Art. 21 I, 20 II Dublin-III regulation when first filing a take charge request.

The responsibility of Germany did also not cease because of other reasons. The Greek authorities protested against Germanys rejection to take charge of the applicants. Under Art. 5 II Dublin-III Implementing regulation the requesting member state may ask for its request to be reexamined where it has additional evidence to put forward. This option must be exercised within three weeks following the receipt of the negative reply. The Greek authorities sent the Holding letter within this period of time. However, the requested documents arrived after the deadline had already expired.

The Administrative Court reasoned that the question, if the Holding letter or the requested documents were the relevant factor for the deadline, is irrelevant because the BAMF replied only more than half a year later. This was too late, considering that Art. 5 II Dublin-III Implementing regulation sets a time limit for the reply of two weeks.

The Court turns to the case law of the CJEU, which states that the responsibility of a member state passes to the requesting member state after the two-week deadline has expired. But the Administrative Court Berlin examines that this case law of the CJEU only applies in situations where the applicants benefit from an expiry of a deadline. But the situation in the present case, which is also called “Dublin reversed”, is different: The expiry of a deadline would work to the detriment of the applicants, making the family reunification impossible. This is not intended by the Dublin regime. It is not a mere arrangement to allocate the responsibility of the member states for asylum requests but also serves the interests of the applicants, granting them individual, subjective rights. It follows from the human right to be reunited as a family in Art. 7 CFREU and Art. 8 ECHR that the mere expiry of a deadline cannot lead to a refusal of a reunion. Another argument for this view is that otherwise authorities of the requested member state would be able to reject their responsibility by simply not respecting the two-week deadline for reply.

Thus, the high importance of family unity and the great good of children’s well-being indicate that the requested member state is required to examine the asylum requests even if a deadline has already expired

The Administrative Court goes on that applicants 1 and 2 can also claim Germany’s responsibility under the discretionary clause of Art. 17 II Dublin-III regulation. Looking at recital 17 of the Dublin-III regulation it states that the member states are able to derogate from the responsibility criteria in particular on humanitarian and compassionate grounds, in order to bring together family members. In the present case these humanitarian grounds can be confirmed because of the close family links of the applicants.

Looking at applicant 3 the Court also states that Germany is responsible under Art. 17 II Dublin-III regulation. Because of the particular circumstances of her case, applicant 3 can require Germany to make use of the discretionary clause. The severe violence that she has suffered in Syria constitutes a particular case of hardship that does not make it acceptable for her to stay in a Greek refugee camp without her family. She is only 23 years old, has always lived together with her parents and did not yet found her own family.