Germany – Administrative Court Magdeburg, 13 July 2016, 9 A 594/15 MD

Country of Decision:
Country of Applicant:
Date of Decision:
13-07-2016
Citation:
9 A 594/15 MD
Court Name:
Administrative Court Magdeburg
National / Other Legislative Provisions:
Germany - AufenthG (Residence Act) - § 60
Germany - AufenthG (Residence Act) - § 60 Abs. 1
Germany - AufenthG (Residence Act) - § 60 Abs. 2
Germany - AufenthG (Residence Act) - § 60 Abs. 3
Germany - AufenthG (Residence Act) - § 60 Abs. 5
Germany - VwGO (Code of Administrative Court Procedure)
Germany - VwGO (Code of Administrative Court Procedure) 87a (2)
Germany - VwGO (Code of Administrative Court Procedure) 87a (3)
Germany - VwGO (Code of Administrative Court Procedure) 101(2)
Germany - VwGO (Code of Administrative Court Procedure) 83
Germany - VwGO (Code of Administrative Court Procedure) 88
Germany - VwGO (Code of Administrative Court Procedure) 113(1)
Germany - VwGO (Code of Administrative Court Procedure) 115 (1)
Germany - VwGO (Code of Administrative Court Procedure) 167
Germany - VwGO (Code of Administrative Court Procedure) 67(2)
Germany - VwGO (Code of Administrative Court Procedure) 67(4)
Germany - AsylG (Asylum Law) Article 26a
Germany - Asylum Act - Art.34a
Germany - AsylG (Asylum Law) Article 83(3)
Germany - AsylG (Asylum Law) Article 83b
Germany – AsylGerZuVo (Ordinance of Saxony-Anhalt regarding the Court Jurisdiction for Asylum Procedures)
Germany – GVG (Court Constitution Act) - § 17 (1)
Germany – GVG (Court Constitution Act) - § 17 (1) Germany – AufenthG (Residence Act) - § 60a (1) sentence 1
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Headnote: 
The Dublin-III-Regulation is no longer applicable to a person that has already been recognised as a beneficiary of international protection in a Member State where he has lodged a (first) application for international protection. 
 
A foreign recognition decision has certain legal effects in Germany, i.e. it provides for the same protection against deportation as a decision taken by the German authorities. 
 
However, a beneficiary of international protection has no claim to be repeatedly granted refugee or subsidiary protection status or even to a corresponding right of residence. Thus, a new application for asylum of such a beneficiary can be rightfully denied as inadmissible. 
 
Nonetheless, a deportation order resulting from an asylum application found to be inadmissible is unlawful where there are obstacles to the deportation according to § 60 (5) AufenthG (Residence Act). Such an obstacle can arise where the deportation would put the applicant at risk of an inhuman or degrading treatment within the meaning of Art. 3 of the ECHR.
In light of the deplorable state of the general living conditions in Greece as well as of those of beneficiaries of international protection in particular, the conclusion is justified that a deportation of a recognised beneficiary of international protection to Greece would amount to a violation of Art. 3 of the ECHR. 
 
Facts: 

The applicant, a Syrian national of Islamic belief and Arabic ethnicity, applied for asylum in Germany.

According to the applicant himself, he had entered Germany coming from Greece. After the personal interview and a hit in the EURODAC database, the Federal Office for Migration and Refugees (Federal Office) requested the Greek authorities to take the applicant back. These denied the request based on the fact that the applicant has already been granted refugee status in Greece.

Subsequently, the Federal Office denied the application for asylum as inadmissible, requested the applicant to leave the country within 30 days of the decision and threatened that he would otherwise be deported to a country which he was allowed to enter or which was obliged to take him back. At the same time, it held that the applicant could not be deported back to Syria.

The Federal Office based its decision on the grounds that no further asylum procedure could be conducted after the applicant had been granted refugee status in Greece since
§ 60 (1) sentence 3 and (3) AufenthG excluded a repeated granting of refugee status. Furthermore, the application was also deemed to be inadmissible because the applicant had been granted a protection status in a safe third country.

The applicant appealed this decision to the Administrative Court Magdeburg arguing that there are systemic flaws in the Greek asylum system and that his mother as well as his brother have been granted refugee status by the Federal Office. Moreover, he claimed that, to his knowledge, in Greece he has been only granted subsidiary protection status. Finally in his view, there were, in any case, obstacles to his deportation.

Consequently, he applied to the Court to oblige the Federal Office to annul or amend its decision and to conduct the asylum proceedings. Alternatively, he applied for the Federal Office to be obliged to recognise that there was an obstacle to his deportation. 

Decision & Reasoning: 

The Court, firstly, held that it was authorised to decide without an oral hearing due to the consent of both parties and that it was also otherwise competent to decide the case, despite the previous changes in the territorial jurisdiction regarding asylum procedures.

Furthermore, it found that the application was admissible, at least, as regards the declaration sought that there was an obstacle to the deportation. Thus, the Court argued that the question whether the application regarding the obligation of the Federal Office to conduct a new asylum procedure was admissible could be left open. However, the Court deemed doubtful that the applicant had a corresponding claim since he has already been granted refugee status in Greece and, therefore, this part of the application would in any case be unfounded.

Secondly, the Court held that the Dublin-III-Regulation was no longer applicable in the case at hand since it did not apply to third-country nationals who apply for asylum in Germany but who have already been granted refugee status in another Member State. The Court based this conclusion on the fact that the Dublin-III-Regulation itself differentiates between the terms “applicant” (Art. 2 lit. (c)) and “beneficiary of international protection” (Art. 2 lit. (f)). It further referred to Art. 20 (1) of the Dublin-III-Regulation according to which the process of determining the Member State responsible shall start as soon as an application for international protection is first lodged with a  Member State. In the Court’s view, the procedure was consequently not applicable anymore where a third-country national has been granted international protection after he lodged an application in another Member State. Accordingly, Art. 18 lit. (a) to (d) of the Dublin-III-Regulation did also not provide for an obligation of the Member State responsible in case of a positive decision on an application for asylum and there was also no room for the application of the sovereignty clause under Art. 17 of the Dublin-III-Regulation.

Thirdly, the Court found that the Federal Office rightly denied the application for asylum. According to § 60 (1) sentence 2 AufenthG (Residence Act), a foreign national that has been granted foreign refugee status outside the federal territory in accordance with the Convention relating to the Status of Refugees  may not be deported to the country where he/she has been persecuted. Sentence 3 of the same provisions sets forth that in such cases the Federal Office does not have to conduct an asylum procedure in order to determine whether the foreign national shall be granted refugee status ("...expect in cases covered by sentence 2."). The same applies to foreign nationals who have been granted subsidiary protection status (cf. § 60 (2) sentence 2 AufenthG).

Therefore, a recognition decision granted by another State does have certain legal consequences even if under international law it is not equivalent with a decision of the German authorities and consequently is not comprehensively binding. However, persons who have been granted refugee status abroad enjoy the same protection against deportation as those granted such status in Germany.  Nonetheless, these persons have no claim to be granted refugee or subsidiary protection status again or even a right of residence in Germany and a corresponding application can be denied as inadmissible.

Fourthly, the Court held that the deportation order was unlawful since the applicant had a claim to the recognition of obstacles to his deportation to Greece according to §60 (5) AufenthG.

It argued that such deportation would put the applicant at risk of an inhuman and degrading treatment within the meaning of Art. 3 of the ECHR. With reference to the case law of the ECtHR, the Court explained that the state's positive duty to protect stemming from Art. 3 ECHR did not give rise to a claim of a foreign national to remain in a certain Member State in order to continue profiting from medical, social or any other benefits. Unless there are extraordinary compelling humanitarian reasons that speak against a transfer, the fact that the economic and social living conditions would be significantly worse after such transfer alone does also not arise to a violation of Art. 3 of the ECHR. However, a state can be held responsible under Art. 3 of the ECHR in extraordinary cases where the foreign national is completely dependent on state support and is faced with indifference by the authorities despite the fact that he/she lives in such poverty and need that it is incompatible with his/her human dignity (cf. ECtHR, M.S.S. v Belgium and Greece, Judgement of 21 January 2011, Application No. 30696/09).

After a detailed analysis of the general living conditions in Greece as well as of those of beneficiaries of international protection in particular, the Court came to the conclusion that in the present case such extraordinary circumstances were given.  Namely, the Court referred to the persistent recession, the low per capita income/lack of a minimum income, the strict austerity program imposed by the EU, the lack of social benefits such as unemployment benefits and/or the dependence of such benefits of an income, the lack of a functioning health insurance system and the high unemployment rates. In light of these circumstances, a beneficiary of international protection had no realistic chance of being employed, in particular since there were no official integration programmes or language courses. Bearing in mind the dependence of social benefits as well as health care of a sufficient income and the particular vulnerability of refugees, the Court found that there was sufficient evidence to conclude that a deportation of the applicant would result in a violation of Art. 3 of the ECHR.

Outcome: 

The Federal Office is obliged to recognise that there is an obstacle to deportation within the meaning of §60 (5) AufenthG. Otherwise, the application is unfounded and has been denied. 

Subsequent Proceedings : 

On the 8 May 2017 the German Federal Constitutional Court gave its ruling in a similar case on the conditions in Greece 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 written by Ann-Christin Bölter, LLM student in Immigration Law at Queen Mary University, London.

Other sources cited: 

 

Pro Asyl, Flucht ohne Ankunft – Die Misere von international Schutzberechtigten in der EU
(Pro Asyl, Flight without an arrival – The dreadful state of beneficiaries of international protection in the EU)

Griechenland-Blog, Neue Pleitewelle in Griechenland, 08. Juli 2016 (Greece-Blog, New wave of bankruptcies in Greece, 08 July 2016)

Griechenland-Blog, Griechenland plant Solidaritätsabkommen ab 2017, 22. Februar 2016 (Greece-Blog, Greece envisages agreement on solidarity from 2017, 22 February 2016)

satisa.com,  Griechenland – Arbeitslosenquote bis 2016 und Europäische Union: Jugendarbeitslosenquote in den Mitgliedstaaten im Mai 2016 (statisa.com, Greece – Unemployment figures until 2016 and European Union: Youth unemployment figures in the Member States as of May 2016)

Amnesty International, Amnesty Report 2016 zu Griechenland
(Amnesty International, Amnesty Report 2016 regarding Greece)

Zeit Online, Junge Griechen bleiben ohne Jobs, 04 Juli 2016
(Zeit Online, Young Greeks remain unemployed, 04 July 2016)

Aktuelle Sozialpolitik, Von der Zerbröselung der Rente in einem Land ohne Sozialhilfe. Anmerkungen zur sozialen Tragödie in Griechenland und der ausbleibenden Katharsis, 07 Mai 2016 (Aktuelle Sozialpolitik, The crumbling of the pensions in a country with no social benefits. Comments on the social tragedy in Greece and the missing catharsis, 07 May 2016)

Durchschnittseinkommen.net

Landesanstalt für politische Bildung Baden-Württemberg (Regional Office for political education of Baden-Württemberg)

Wirtschaftswoche.de, Griechenland – Eine soziale Explosion droht (Wirtschaftswoche.de, Greece – The threatening social explosion)

Handelsblatt.de, Hartz IV auf Griechisch
(Handelsblatt.de, “Hartz IV” in Greek)

 

Case Law Cited: