Germany – Federal Constitutional Court, 17 September 2014, 2 BvR 1795/14

Country of Decision:
Country of Applicant:
Date of Decision:
17-09-2014
Court Name:
Federal Constitutional Court (Bundesverfassungsgericht)
National / Other Legislative Provisions:
Germany – Basic Law (Grundgesetz)
Germany - Bundesverfassungsgerichtsgesetz (BVerfGG)
Germany - Asylverfahrensgesetz (AsylVfG)
Germany - Aufenthaltsgesetz (AufenthG)
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Headnote: 

The decision of the German Federal Constitutional Court allowed a Dublin transfer of a woman and her infant child to Italy stating that the applicants did not sufficiently substantiate that they were at risk of living on the streets when returned to Italy.

The competent authority has to provide suitable guarantees to ensure the well-being of the infant applicant when returned to Italy.

Facts: 

The applicants are a woman from Ethiopia and her infant child. In January 2014 they travelled to Germany and requested asylum. The Federal Office for Migration and Refugees (BAMF) noted that they had already sought asylum in Italy.

The BAMF issued a decision on 16 June 2014 that the applicants were not entitled to asylum in Germany as they had already received subsidiary protection in Italy and ordered their deportation.

The applicants’ claim against this decision was rejected by the Administrative Court of Kassel on 8 July 2014. The court found that the reception conditions in Italy did not show systemic deficiencies. Only single parents with children were at risk of being treated inappropriately when transferred to Italy. This exception was not applicable to the applicants, since the partner of the female applicant also had to leave Germany for Italy.

The applicants claim that having to return to Italy poses a high risk of having to live on the streets, having no access to health care and nutrition.

Decision & Reasoning: 

The German Federal Constitutional Court (FCC) rejected the application. It nevertheless instructed the competent authority to provide suitable guarantees to ensure the well-being of the infant applicant when returned to Italy.

The FCC reasoned that the applicants had not sufficiently substantiated that they were at risk of living on the streets when returned to Italy. The court therefore did not have to examine if the Italian reception conditions showed systemic deficiencies.

In its reasoning the FCC invokes its own jurisprudence and the one of German Administrative Courts concerning Dublin transfers.

According to the jurisprudence of the FCC the competent German authority has the duty to contact the competent authority of the receiving country before the transfer, clarify the facts and provide suitable guarantees where appropriate. It has to verify, in particular, the health status of the applicant and abstain from the transfer if necessary.

Following the jurisprudence of German Administrative Courts only the BAMF is competent to examine Dublin transfers. It has to consider obstacles originating from the transferring country as well as from the receiving country. If necessary, the BAMF has to refrain from the deportation order.

A Dublin transfer is impossible if there is a concrete risk of the transfer aggravating the health conditions of the foreigner and this risk cannot be eliminated or reduced by special arrangements. This is for example the case if the applicant is not fit to travel. The BAMF has to consider the entire transfer process beginning with the deportation notice.

The competent authority also has to consider that there is usually no help from relatives in the receiving country the applicant can count on. It has to evaluate if, due to reports of internationally recognised refugee organisations or the German Foreign Ministry, there are indications of capacity problems in the receiving country.

Last but not least, the competent authority has to respect family unity and the best interest of the child. If families with newborns or infants up to three years are transferred, it has to be ensured beforehand that they obtain a safe accommodation in the receiving country.

Outcome: 

Application denied; Decision incontestable.

Subsequent Proceedings : 

This Case summarises the most important jurisprudence of the FCC and German Administrative Courts concerning Dublin transfers.

 

Observations/Comments: 

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

Case Law Cited: 

Germany – VGH Baden-Württemberg - 11 S 2439/07

Germany - OVG Baden-Württemberg, Decisionn of 31 May 2011 – A 11 S 1523/11 -, juris Rn. Ff

Germany - OVG Nordrhein-Westfalen, Decision of 30 August 2011 – 18 B 1060/11 -, juris Rn. 4

Germany - OVG Niedersachsen, Judgment of 4 July 2012- 2 LB 163/10 -, juris Rn. 41

Germany - OVG Berlin-Brandenburg, Decision of 1 February 2012 – OVG 2 S 6.12 -, juris Rn. 4ff

Germany - VGH Bayern, Decision of 12 March 2014 – 10 CE 14 427 -, juris Rn. 4

Germany - OVG des Saarlandes, Decision of 25 April 2014 – 2 B 215/14 -, juris Rn. 7

Germany - OVG Hamburg, Decision of 3 December 2010 – 4 Bs 223/10 -,juris Rn. 9 ff

Germany – OVG Sachsen-Anhalt - 2 M 38/11

Germany - OVG Mecklenburg-Vorpommern, Decision of 29 November 2004- 2 M 299/04 -, juris Rn. 9 ff

Germany – Federal Constitutional Court - BVerfGE 94, 49 ff.

Germany – Federal Constitutional Court - BVerfGE 90, 22

Germany – Federal Constitutional Court - BVerfGE 108, 370

Germany – Federal Constitutional Court - BVerfGE 128, 224

Germany – VG Karlsruhe - A 9 K 3615/13

Germany – Federal Constitutional Court - 2 BvR 185/98