Germany – Federal Administrative Court, 27 April 2016, 1 C 24.15

Country of Decision:
Country of Applicant:
Date of Decision:
27-04-2016
Citation:
1 C 24.15
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany - Asylum Act - Art. 27a
Germany - Administrative Court Act (VwGO) - Art. 80.5
Germany - Administrative Court Act (VwGO) - Art. 80.7
Germany - Administrative Court Act (VwGO) - Art. 137.1
Germany - Administrative Court Act (VwGO) - Art. 137.3
Germany - Administrative Court Act (VwGO) - Art. 113.1
Germany - Asylum Act - Art. 77
Germany - Asylum Act - Art. 71a
Germany - Asylum Act - Art. 34(a)(2)
Germany – (VwGO) Administrative Court Act - Art. 86 (1)
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Headnote: 

If a Member State is responsible for carrying out an asylum procedure under the relevant terms of the Dublin Regulation, e.g. under Art. 29 (2) of the Dublin III Regulation, an applicant may invoke that Member State’s responsibility if it has not been positively established that another Member State (which does not have responsibility) is willing to take charge of the applicant or take him or her back.

In such a case, it can be derived from the objective and purpose of the Dublin system, as well as the fact that it constitutes the procedural dimension of the substantive rights granted to applicants by Directive 2011/95/EU (i.e. Qualification Directive), that the individual concerned is entitled to have his asylum application reviewed by the responsible Member State. This is so, irrespective of the question, whether the provisions on the Member State’s responsibility generally provide for subjective rights of the applicants. 

Facts: 

The complainant, an Iranian national, appeals the rejection of his asylum application as inadmissible together with the order of his deportation to Hungary.

The Federal Office for Migration and Refugees (Federal Office) had denied his asylum application as inadmissible because another country had international responsibility. A Eurodac check had shown that he previously applied for asylum in Hungary and the Hungarian authorities had also declared that they were willing to take back the complainant. At the same time the Federal Office ordered the complainant to be deported to Hungary.

His appeal to the Administrative Court and the application for interim relief were both rejected.

The complainant then appealed these decisions to the Higher Administrative Court which ordered the suspensory effect of the proceedings with regards to the deportation order and repealed the decision of the Federal Office in the main proceedings.
 The responsibility for carrying out the asylum proceedings under the Dublin III Regulation had been transferred to Germany because the complainant had not been transferred to Hungary within six months.
A violation of the complainant’s rights proceeded at any event from substantive law because as a matter of European law he was entitled to have his asylum application reviewed by one of the Member States. In the absence of any reference to a Member State’s continuing willingness to take back an applicant, one can, as a rule, not assume that this willingness persists beyond the time limit for transfer.
Therefore, the question, whether and to what extent the Dublin Regulation offers individual protection, could be left aside.

The Federal Office appealed this decision to the Federal Administrative Court (FAC). 

Decision & Reasoning: 

At first, the FAC held that the Higher Administrative Court was right to assume that the appeal of the complainant was admissible and well founded because the decision of the Federal Office was unlawful and violated the subjective rights  of the complainant.

With regards to the admissibility, the FAC argued that the required need for legal protection has not been forfeited on grounds that the transfer time limit under Art. 29(1) of the Dublin III Regulation had expired. This did not cause the regulatory effect of the Federal Office’s decision to expire, nor was the matter thereby disposed of in any other way.

Regarding the inadmissibility of the asylum application on grounds of another’s country’s international responsibility under § 27a of the Asylum Act, the FAC argued that, although Hungary might have had an initial responsibility under Art. 3 (1) subsection 2 read in conjunction with chapter III of the Dublin III Regulation, this responsibility  had in any case been transferred to Germany with the expiration of the time limit of six months for the transfer under Art. 29 (2) Dublin III Regulation.

In the case at hand, the transfer time limit started with the Hungarian authorities’ acceptance of the request to take the complainant back, according to Art. 29(1) subsection 1 (Alternative 1) of the Dublin III Regulation. This is not changed by the Court of Appeal’s decision to grant suspensory effect since the time limit had already expired at this point. It is only possible to postpone the beginning of the time limit until the date of the final decision on an appeal according to Art. 29(1) subsection 1 (Alternative 2) where the time limit under Alternative 1 has not already expired at the time when the characterising conditions of Alternative 2 arose. Otherwise, a change of responsibility tied to the expiration of the transfer time limit could be quashed by initiating a new transfer time limit.

In the present circumstances, the complainant is entitled to have his asylum application  reviewed in Germany. The FAC decided to leave aside the question whether the provisions of the Dublin III Regulation on responsibility have a general effect of protecting the individual, and whether the applicant can in any case demand a review by the responsible Member State (see AG Sharpston’s regarding C-63/15 <Ghezelbash> and C-155/15 <Karim>).  This is because the Member State that is responsible under the Dublin rules cannot in any event refer an applicant to a review by another Member State (which does not have responsibility) if the latter Member State’s willingness to take charge of or to take back the applicant has not been positively established.


This proceeds as an unwritten characterising circumstance from the objective and purpose of the Dublin system, on the one hand, namely guaranteeing effective access to the procedures for granting international protection and the rapid processing of applications for international protection. On the other hand, it follows from the procedural dimension of the substantive rights granted to applicants by Directive 2011/95/EU (so-called Qualification Directive). Accordingly, applicants cannot themselves select the Member State responsible for examining their application, but they are entitled to have it reviewed within in the EU. If applicants could not rely on a Member State’s responsibility even if no other Member State is willing to take charge of them or take them back, the situation of a ‘refugee in orbit’ would arise, in which no Member State would consider itself responsible for the substantive review of an application for asylum. 

Additionally, the FAC held that the finding of fact that Hungary is no longer willing to take charge of the complainant by the Court of Appeal was unobjectionable. The corresponding procedural complaint does not meet the formal requirements for demonstrating a procedural error since there is no explanation how and to what extent a further investigation into the willingness to take charge could have been conducted. Also, the complaint is not persuasive as regards substantive law since the Court of Appeal did conduct its own investigations and the Federal Office did not exercise its procedural duty to cooperate.

In light of the clear requirements under Union law, namely in lack of a positive indication of a continuing willingness to take charge or take back, the Court held that there was an ‘acte clair’ with regards to individual protection. Thus, there was no need for a stay of proceedings until  the Court of Justice of the European Union had decided on the already pending request for preliminary rulings on the extent to which the responsibility provisions of the Dublin III Regulation generally have an effect protecting the individual. 

Since the Federal Office improperly rejected the asylum application as inadmissible the requirements for a deportation order have also not been met.

Outcome: 

The Respondent’s appeal against the decision of the Rhineland-Palatinate Higher Administrative Court of 23 November 2015 was denied.

Observations/Comments: 

On the same day the FAC decided in other proceedings to seek a preliminary ruling from the CJEU regarding the question on how a timely application for an order for a suspensive effect affects the course of the transfer time limit under Art. 29(1) subsection 1 Alternative 1 of the Dublin III Regulation (see Federal Administrative Court,  Court Order of 27 April 2016, 1 C 22.15).

This case summary was written by  Ann-Christin Bölter, an LLM student in Immigration Law at Queen Mary University, London.

The summary was proof read by Ana-Maria Bucataru, LLM student in Immigration Law at Queen Mary University, London.

Other sources cited: 

Implementing Regulation (EC) No. 1560/2003, Art. 9(2)

 

Case Law Cited: 

Germany – Federal Administrative Court, 19 August 1997, 7 B 261.97

Germany – Federal Administrative Court, 16 November 2015, 1 C 4.15

Germany – Federal Administrative Court, 27 October 2015, 1 C 32.14

Germany – Federal Administrative Court, 11 September 2007, 10 C 8.07

CJEU - C-63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie