Germany – Administrative Court Hanover, 19 January 2017, 11 B 460/17

Country of Decision:
Country of Applicant:
Date of Decision:
19-01-2017
Citation:
11 B 460/17
Court Name:
Administrative Court Hanover
National / Other Legislative Provisions:
Germany – VwGO (Administrative Court Act) - § 80 (5) sentence 1 first alternative
Germany – VwGO (Administrative Court Act) - § 80 (2) sentence 1 No. 3
Germany – AsylG (Asylum Act) - § 75 (1)
Germany – AsylG (Asylum Act) - § 71a (1)
(2) and (4)
Germany – AsylG (Asylum Act) - § 36 (1)
(3) and (4)
Germany – AsylG (Asylum Act) - § 29 (1) No. 5
Germany – AsylG (Asylum Act) - § 26a
Germany – VwVfG (Administrative Procedure Act) - § 51 (1) to (3)
Germany – GG (Basic Law/German Constitution) – Art. 16a (2) sentence 1
Germany – AsylG (Asylum Act) - § 25
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Headnote: 

1. An application for asylum lodged in Germany only qualifies as a subsequent application within the meaning of section 71a of the Asylum Act, interpreted in conformity with the constitution, if the first asylum procedure in a country that is generally determined to be a safe third country has actually been conducted in compliance with the 1951 Refugee Convention as well as the European Convention on Human Rights (ECHR).
This is not the case, where, at the time of the decision, there have been systemic deficiencies in the asylum procedures of the third country which have put the applicant at risk of an inhuman or degrading treatment within the meaning of Art. 4 of the EU Charter of Fundamental Rights and Art. 3 of the ECHR.

2. The procedure to determine whether a second asylum procedure is to be conducted also requires a personal interview of the applicant. Such an interview is only dispensable where the Federal Office of Migration and Refugees (Federal Office) can either decide on the basis of the information received on the merits of the decision whether the new application constitutes a new submission or assess already on the basis of the detailed written explanations of the applicant reliably and safely that the submission is clearly and manifestly inconsistent.

Facts: 

The applicant of Pakistani origin lodged an application for asylum in Germany on 14 October 2016 which was rejected as inadmissible by the Federal Office on 27 December 2016 ordering his deportation.
The Federal Office argued that the applicant already unsuccessfully completed an asylum procedure in a safe third country within the meaning of section 26a of the Asylum Act, namely in Greece, where both of his applications for asylum have been rejected in 2013 and in 2014 respectively. The Federal Office also did not consider the conditions for further asylum procedures to be conducted to be met.

The applicant lodged an appeal against the deportation order with the Administrative Court Hanover and filed an application for the appeal to have suspensive effect.

Decision & Reasoning: 

The Administrative Court granted the application for the appeal to have suspensive effect because in its view there were serious doubts regarding the legality of the decision of the Federal Office. The court based its doubts, on the one hand, on the fact that the application for asylum lodged in Germany was wrongly qualified as a subsequent application and, on the other hand, on the lack of a personal interview before the decision was taken.

Regarding the first point the court set out that the qualification of an application for asylum as a subsequent application within the meaning of section 71a (1) of the Asylum Act required that an asylum procedure in a safe third country within the meaning of section 26a of the Asylum Act has been unsuccessfully completed. According to Article 16a (2) sentence 1 of the Basic Law, Greece as a Member State of the European Union was generally to be regarded as a safe third country. This classification was based on the assumption that the 1951 Refugee Convention as well as the ECHR were not only generally applicable in all Member States but also in principle applied in practice. This assumption, which was enshrined in the constitution, could generally not be rebutted by submissions in the individual case. However, the Federal Constitutional Court (FCC) established five exceptions to this principle which due to extraordinary circumstances could not have been foreseen by the legislator and, thus, could also not have been taken into account within the framework of the concept of normative reassurance. One of these exemptions are exceptional situations where the third country itself takes measures arising to political persecution or inhuman treatment within the meaning of Art. 3 of the ECHR against the applicant and consequently became an actor of persecution (cf. FCC, Judgement of 14 May 1996, 2 BvR 1938/93, para. 189). According to the ECtHR, deficiencies in the examination of applications for asylum as well as the risk of the applicant to be deported to the country of origin without a genuine assessment of the merits of the application and without having access to effective remedies could also constitute such inhuman treatment within the meaning of Art. 13 and Art. 3 of the ECHR (ECtHR, M.S.S. v. Belgium and Greece, Judgement of 21 January 2011, Application No. 30969/09, para. 321). In the same decision the ECtHR held that, at that time, the Greek asylum system suffered from such substantial systemic deficiencies that arose to an inhuman treatment of the respective applicants.

The Administrative Court then went on to argue that, according to the AIDA Country Reports 2013-2015, the Human Rights Report 2014 of the U.S. Department of State as well as the fact, that the German Federal Ministry of Interior (FMI) had suspended Dublin transfers to Greece until 2017, at the time of the application of the plaintiff in 2013 no significant improvement of the Greek asylum system had occurred. In particular, the applicant did not yet benefit from the reform of the asylum procedures law adopted in 2011 due to delays in its implementation. Consequently, the applicant had not unsuccessfully completed an asylum procedure in a safe third country which would lead to the application in Germany to be classified as a subsequent application. Finally, the court held that a different conclusion could also not be reached in light of the fact that the plaintiff had applied again for asylum in Greece in 2014 because this second application had already been rejected as inadmissible.

Regarding the lack of a personal interview, the Administrative Court, firstly, set out that such interview was generally also required in the context of a procedure to determine whether a second asylum procedure was to be conducted. Such interview was only dispensable in the exceptional case where the Federal Office already disposed of all relevant information concerning the first asylum procedure in order to determine in accordance with section 51 of the Administrative Court Act whether a new submission had been made. Furthermore it could refrain from conducting a personal interview if the written explanations of the applicant were detailed enough to assess reliably and safely that the submission was clearly and manifestly inconsistent. The Administrative Court then concluded that neither of said exceptions applied in the case at hand since the Federal Office had no further information on the merits of the decision of the Greek authorities and there was no sufficiently detailed written statement of the applicant.

Outcome: 

The application for the appeal against the deportation order of the Federal Office to have suspensive effect was granted.

Subsequent Proceedings : 

The decision in the main proceedings (Ref.: 11 A 456/17) is apparently still pending.

On the 8 May 2017 the German Federal Constitutional Court gave its ruling in a similar case on the conditions in Greece, albeit for beneficiaries of international protection. The Constitutional Court held that the Administrative Court on appeal did not address the point that social benefits are only available in Greece to persons who have been legally residing in the country for twenty years, excluding those with international protection. Recognised beneficiaries of international protection, like asylum seekers, are a particularly vulnerable group. Integration measures do not exist in Greece and it was therefore incumbant on the Federal Office of Immigration and the administrative court to assess whether and how access to shelter, food and sanitary facilities are ensured for recognised beneficiaries returned to Greece. Accomodation is not guaranteed by the Greek authorities and this has not been requested by the Federal Office of Imigration.  Remitting the case back to the Administrative Court the Constitutional Court holds that they must consider whether beneficiares of international protection have effective access to social assistance in light of general social assistance having been introduced on the 1st of January 2017.

 

 
Observations/Comments: 

This case summary was wrriten by Ann-Christin Bölter, a LLM graduate of Queen Mary University, London. 

This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.

Other sources cited: 

FMI: Press Release of 19 January 2011
(http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/DE/2012/12/dublinue...)

Asylum Information Database (AIDA): National Country Report Greece
(31 July 2014)

AIDA: National Country Report Greece (1 December 2013)

AIDA: National Country Report Greece ( 27 April 2015)

AIDA: National Country Report Greece (1 June 2013)

U.S. Department of State: Human Rights Report 2014 (25 June 2015)

FMI: Press Release of 14 December 2012
(http://www.bmi.bund.de/SharedDocs/Pressemitteilungen/DE/2012/12/dublinue...)

Frankfurter Allgemeine Zeitung: “Dublin lives” (13 January 2017)

 

Case Law Cited: 

Germany – Administrative Court Aachen, 4 August 2015, 8 L 171/15.A

Germany – Administrative Court Munich, 26 October 2016, M 17 K 15.31601

Federal Constitutional Court, 14 May 1996 – 2 BvR 1938/93 and 2315/93