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

Country of Decision:
Country of Applicant:
Date of Decision:
15-03-2019
Citation:
VG 23 L 706.18 A
Court Name:
Administrative Court Berlin
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Headnote: 

The discretionary clause in Art. 17 II Dublin-III regulation might under certain circumstances oblige the member states to take charge of an applicant. This can be particularly the case, if the competence of the member state under chapter III of the Dublin-III regulation would not be given because of a deadline expiry the applicant had no influence on.

Facts: 

The applicants are four Syrian nationals. Applicants 1 and 2 are married, applicant 3 is their adult daughter. All three of them are staying in Greece. The fourth applicant is the other applicants’ underage son or brother respectively. He lives in Berlin and was granted subsidiary protection status.

Applicants 1 to 3 applied for asylum in Greece in October 2017. At the same time, they expressed the wish of a family reunification with their underage son and wished that Germany would examine their requests for asylum. Applicant 4 also expressed the wish of a family reunification in writing.

On 15th January 2018 the Greek authorities submitted a take charge request under Art. 21 I Dublin-III regulation for applicants 1 to 3 to Germany. They reasoned that applicants 1 and 2 wished to be reunited with their underage son in Germany. Applicant 3 is severely traumatized because of detention, rape and torture that she suffered in Syria and is thus dependent on her parents.

On 18th January 2018 the German Federal Office for Migration and Refugees (BAMF) rejected the take charge request. At the same time, they requested further documents to verify that the applicants are family members including fingerprints and photographs. They said that the request would be reexamined as soon as the documents arrived.

On 2nd February 2018 the Greek authority sent a Holding letter to the BAMF, asking to not yet finally decide upon the matter because it needed more time to gather the requested information. The documents were sent to BAMF on 26th February 2018.

In October 2018 the BAMF rejected the take charge request arguing that the deadline of submission under Art. 5 II Dublin-III Implementing regulation had expired so Greece was responsible for reviewing the asylum applications.

The Greek authority informed their German counterpart that they would not accept the rejection and submitted the request again. They reasoned that the BAMF had promised that the request would be reexamined as soon as the required documents arrived in their letter from 18th January 2018.

In November 2018 the applicants filed a complaint at the Administrative Court of Berlin claiming that the BAMF should acknowledge to be competent for their asylum requests.

Decision & Reasoning: 

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.

Outcome: 

Application granted.

Observations/Comments: 

This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.

Other sources cited: 

Domestic Case Law Cited

Germany – Federal Constitutional Court (BVerfG), 17.01.2017, 2 BvR 2013/16

Germany – Federal Administrative Court (BVerw), 27.06.1984, BVerwG 1 ER 310.84

Germany – Higher Administrative Court Bavaria (VGH Bayern), 03.12.2015, 13a B 15.50124

Germany – Higher Administrative Court Lower Saxony (OVG Niedersachsen), 15.11.2016, 8 LB 92/15

Germany – Administrative Court Berlin (VG Berlin), 23.11.2017, VG 23 L 836.17 A

Germany – Administrative Court Berlin (VG Berlin), 02.01.2018, VG 23 L 905.17 A

Germany – Administrative Court Düsseldorf (VG Düsseldorf), 21.02.2018, 22 L 442/18.A

Germany – Administrative Court Freiburg (VG Freiburg), 08.05.2018, A 4 K 11125/17

Germany – Administrative Court Halle (VG Halle (Saale)), 12.07.2018, 7 B 125/18 HAL

Germany – Administrative Court Minden (VG Minden), 05.06.2015, 6 K 182/15.A

Germany – Administrative Court Münster (VG Münster), 20.12.2018, 2 L 989/18.A

Germany – Administrative Court Wiesbaden (VG Wiesbaden), 09.03.2018, 4 L 444/18.WI.A

Germany – Administrative Court Würzburg (VG Würzburg), 02.11.2017, W 2 E 17.50674

Case Law Cited: 

CJEU - C‑47/17 and C‑48/17, X & X

CJEU - C 670/16, Mengesteab, 26 July 2017

CJEU - C-578-16, C. K. and Others, 16 February 2017