Germany – Administrative Court Leipzig (VG), 22 April 2020, 3 L 204/20.A
Country of Decision:
Country of Applicant:
Date of Decision:
22-04-2020
Citation:
3 L 204/20.A
Court Name:
Administrative Court Leipzig
Relevant Legislative Provisions:
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 17
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 18
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 22
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 18
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 22
National / Other Legislative Provisions:
Germany - §§ 47
49
80
83b German Asylum Act (AsylG)
Germany - §§ 28
32
36 German Infection Protection Act (IfSG)
Germany - §§ 1
2
3
4
5
6
7
9 Saxon Corona Protection Ordinance (SächsCoronaSchVO)
Germany - §§ 76
123
154
166 Code of Administrative Court Procedure (VwGO)
Germany - §§ 114
920 Code of Civil Procedure (ZPO)
49
80
83b German Asylum Act (AsylG)
Germany - §§ 28
32
36 German Infection Protection Act (IfSG)
Germany - §§ 1
2
3
4
5
6
7
9 Saxon Corona Protection Ordinance (SächsCoronaSchVO)
Germany - §§ 76
123
154
166 Code of Administrative Court Procedure (VwGO)
Germany - §§ 114
920 Code of Civil Procedure (ZPO)
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Headnote:
An asylum seeker is entitled to request the temporary termination of his or her stay in an accommodation centre and to seek alternative accommodation if compliance with the distancing rules of the Saxon Corona Protection Ordinance is not possible in the centre.
Facts:
The applicant from Cameroon, born in 1972, requests alternative accommodation. After filing his application for asylum, the applicant had been assigned to an accommodation centre for asylum seekers in the district of North Saxony. Due to the assignment he was obliged to live there.
On 10 April 2020, he filed an application to the competent authority requesting alternative accommodation, arguing that the current type of accommodation did not meet the requirements of the Saxon Corona Protection Ordinance (SächsCoronaSchVO).
In his urgent application (“Eilantrag”) to the Leipzig Administrative Court (VG Leipzig), he described his housing situation in more detail and concluded it was impossible to maintain the required distance of at least 1.5 metres to other persons in the rooms, as stipulated by the Saxon Corona Protection Ordinance. As a result, the applicant did not feel that his right to physical integrity was sufficiently protected, especially as he was possibly more at risk for infectious diseases like COVID-19 due to his age and poor physical condition. The respondent did not comment on the facts presented by the applicant.
Decision & Reasoning:
According to § 49 (2) German Asylum Act, the obligation to reside in an accommodation centre may be terminated for reasons of public health. The wording “may” shows that the legal consequence is at the discretion of the competent authority. In this specific case, however, the discretion of the authority was reduced to the decision of terminating the obligation to reside, since other measures of equal effectiveness were not apparent, especially since the respondent did not comment on the circumstances or propose alternative measures.
In the required balancing of interests, special consideration must be given not only to the public interests, but also to the individual interests of the applicant, since the provision of § 49 German Asylum Act protects both of these interests. The risk of infection with COVID-19 as well as the danger of rapid spread of the epidemic were sufficient reasons of public health care.
The aim of protecting public interest is specifically addressed by the Saxon Corona Protection Ordinance which was issued on 14 April 2020. According to § 1 sentence 1, everyone is required to restrict their personal contacts and, wherever possible, keep a minimum distance of 1.5 metres to other people outside their own household. This provision applies to all areas of living according to § 1 sentence 2 Saxon Corona Protection Ordinance; the stay in public space is regulated in § 2 Saxon Corona Protection Ordinance. According to the Administrative Court Leipzig, § 1 Saxon Corona Protection Ordinance is to be applied regarding the stay in an accommodation centre. This is because especially in accommodation centres for asylum seekers, the prevention of the spread of COVID-19 is of highest importance. On the one hand, this can be derived from the overall context of the Saxon Corona Protection Ordinance, which contains a number of provisions promoting physical distancing between people, for example during assemblies, when shopping or when visiting nursing homes. On the other hand, this follows from the fact that asylum seekers may be more susceptible to infectious diseases due to the stress caused by flight, migration and reorientation.
Due to the fact that the bedrooms, the sanitary facilities and kitchens are shared by several people, it was not possible to keep a sufficient distance. In addition, the applicant was able to provide prima facie evidence that he belonged to a risk group requiring special protection because of his age and state of health.
The possible risk of infection was also sufficient to prove the particular urgency of the application.
Outcome:
Application granted.
Observations/Comments:
This decision of the Leipzig VG is one of the first ones concerning the impact of COVID-19 on the situation in accommodation centres for asylum seekers in Germany. Even though the application was successful in this case, it remains to be seen how other courts may handle similar situations. It is possible that other applications are denied if the respondent presents different and equally adequate protection measures to reduce infection risks in the accommodation centres or proves that the actual conditions in the accommodation centres are different as claimed by the applicant.
In another recent decision, issued 7 May 2020 (6a L 365/20), the Administrative Court Münster decided that a pregnant asylum seeker and her husband also were entitled to the temporary termination of the obligation to live in the accommodation centre due to the high risk of infection with COVID-19.
This case summary was written by Vivien Etzkorn, trainee lawyer at the District Court Duisburg and member of the research group of the Refugee Law Clinic Cologne.
Other sources cited:
Recommendations of the Robert Koch Institute (RKI) on hygiene measures in the context of the treatment and care of patients with an infection by SARS-CoV-2 (as of 1 April 2020).
Preliminary assessment of the disease severity of COVID-19 in Germany based on reported cases according to the RKI's Infection Protection Act (as of 9 April 2020).
Asylum seekers and infection protection - General information on the risk of infection and protective measures of the RKI.
