Germany – Wiesbaden Administrative Court 6 L 4438 / 17.WI, 15 September 2017

Country of Decision:
Country of Applicant:
Date of Decision:
15-09-2017
Citation:
6 L 4438 / 17.WI
Court Name:
Wiesbaden Administrative Court
Relevant Legislative Provisions:
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 6
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Recital (13)
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Recital (14)
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Recital (15)
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 7
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 8
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 10
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 15
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 18
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 21
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 22
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 29
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 36
National / Other Legislative Provisions:
Germany - Code of Administrative Court Procedure - Art. 123
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Headnote: 

Family unity and the best interests of the child are high priorities when applying the Dublin III Regulation.  A child who has applied for international protection in Germany but has members of his family in Greece is entitled to family unity with them in Germany. The Dublin III Regulation specifies that this transfer should be carried out within six months of a Member State’s acceptance of the take charge or take back request. The time period to transfer starts from the Member State’s acceptance of the request. The right of the asylum seeker to be transferred within said time-limit is a subjective right. Whilst Germany had accepted the take charge request they had only planned to transfer the applicants at a time after the six month deadline. An interim injunction was therefore necessary in order to ensure that the rights of the applicant were respected. 

Facts: 

The case concerns a Syrian minor who has applied for asylum in Germany with his application is still pending. His mother, father and three minor brothers have applied for asylum in Greece. As per Article 10 of the Dublin Regulation the family expressed their desire (via the child’s lawyer in Germany and the family members in Greece) to be reunited with one another in Germany. In March 2017, the Greek authorities requested Germany to take charge of the applicants under Article 10 of the Regulation, a request which was subsequently accepted on the 30 of March 2017 by the German national authorities. In accordance with Article 29(1) of the Regulation the deadline for the transfer was due to expire on the 30 September 2017, however the family had still not been transferred at the time of the court proceedings. 

On the 1 August 2017 the applicants lodged an interim measure before the Administrative Court of Wiesbaden arguing that, based on the available documentation, the German Dublin Unit had requested the Greek Dublin Unit to only transfer a certain amount of asylum seekers irrespective of the deadline in Article 29 of the Dublin Regulation. This administrative practice of discussing and determining numbers amounts to a numeric cap on family reunification.  The practice would mean that the applicants were at risk of losing their right to be transferred in a timely fashion. In turn this would mean that the right to be reunited and enter into the asylum procedure in Germany might be lost. Furthermore the CJEU in Mengesteab  has stated that an asylum applicant should have the right to challenge transfer decisions based on the fact that a time limit has expired. In addition, the applicants argued that there is no legal provision in the Dublin Regulation by which Member States may enter into agreements to limit the amount of transfers. Instead Article 8 of the Dublin Implementing Regulation lays down detailed rules for the application of the Dublin Regulation, namely that “it is the obligation of the Member State responsible to allow the asylum seeker´s transfer to take place as quickly as possible and to ensure that no obstacles are put in his way.” Therefore and overall, the applicants have a subjective right to be transferred within the specified time limit. 

Decision & Reasoning: 

The Court firstly ruled that the applicant, under Articles 22 (7) and 29 (1) of the Dublin III Regulation as well as Article 8(1) of the Dublin III Implementing Regulation, is entitled to his family members being transferred to Germany. This is in part due to the requirement that the provisions of the Dublin Regulation be read in light of the bests interests of the child and the right to respect for family life and in part since the applicants fulfil the requirements of Article 10 and Greece has complied with its duties under Articles Article 18 (1)(a) and 21(1).

The Court further ruled that the German authorities are obliged to inform the Greek Dublin Unit that the transfer of the family members of the applicant will take place within the 6-months deadline. That is, before the 30 of September. The right of the asylum seeker to be transferred with the time-limit is a subjective right. Indeed, the Court refers to the CJEU judgment in Mengesteab and states that considerations assessed in this judgment concerning the time-limits regulated in article 21 (1) of the Dublin Regulation can be directly extended to the 6 months’ time-limit  regulated in Article 29 of the Dublin Regulation.

According to the court the conclusion that the German authorities are obliged to transfer within the time-limit is based on the assumption that the German authorities do have an influence on whom the Greek authorities are transferring each month and that a certain quota is stipulated.

The judge bases this assumption on the documents presented by the representation of the applicant highlighting a practice whereby the Federal Republic of Germany has an influence on the persons to be transferred and that there exists a cap on the number of transfers under the Dublin Regulation. The Court further relies on the admission made by the German Federal Office for Migration and Refugees (BAMF) in a response passed to the court on the 29 of August 2017. In this response BAMF states that regular transfers are taking place but that the logistical coordination, when it comes to the reception and accommodation of the asylum seekers, comes at a great expense to the national and federal level, and that an agreement between the German Interior Minister and his Greek colleague exists, according to which, every measure regarding each case of persons who are to be transferred is coordinated.

The court understands that the statement given by BAMF as such that the logistical problems described are not first and foremost to be found in Greece, but in Germany. This follows from the fact that it was stated in the text from BAMF that the coordination efforts should take into account the limited capacities when it comes to reception and care of asylum applicants Germany. With this statement the German authorities could only have had the capacities in Germany in mind. These are conditions that the German side would have to assess and further coordinate with the Greek Dublin unit.

The court therefore assumes that the BAMF has an influence on the numbers and the selection of persons who are to be transferred and that it is possible to oblige the BAMF to transfer certain persons (in this case the applicant’s family).

Outcome: 

An interim injunction is given stating that there is an obligation on Germany to transfer the applicant’s family members who are in Greece to Germany.

The decision is non-appealable. 

Subsequent Proceedings : 

The Wiesbaden decision has been followed by a decision from the Würzburg Administrative Court (W 2 E 17.50674) which conversly ruled that neither Art. 22 (7), 29 (1) Dublin III Regulation read in conjunction with. Art. Article 8 (1) of the Dublin III Implementing Regulation, nor any other legal basis - national or European law - entitles the family members to be transferred within the time limit laid down in Article 8 (1) of the Dublin III Implementing Regulation. In addition, in a decision given on the 12 March 2018 by the VG Braunschweig (9 B 49/18), the Administrative Court held that although Germany was originally responsible under Article 10 of the Dublin III Regulation, due to the expiry of the transfer period, jurisdiction had subsequently been transferred to Greece pursuant to Art. 29 (2) sentence 1 Dublin III Regulation. A similar decision in which the right to be transferred to Germany has not been recognised is: VG Ansbach, AN 14 E 18.50386, 20 April 2018; 

However, the Wiesbaden ruling has been followed by a number of other rulings, which have held that the individuals have a subjective right to be transferred within the time limit, namely VG Wiesbaden, Decision of 09.03.2018 - 4 L 444 / 18.WI.A (highlighting the negligence of the BAMF in not completing the transfer within the set time); VG Dusseldorf, Decision of 21.02.2018 - 22 L 442 / 18.AVG Halle, 14.11.2017 - 5 B 858/17 HALVG Berlin, 23.11.2017 - 23 L 836.17 A and VG Düsseldorf, 24.10.17, 12 L 4933/17.A. In the last case the Dusseldorf Administrative Court granted an interim measure right before the end of the 6 months time limit and ruled that German authorities have to confirm officially that they will take charge of the case. 

EDAL would like to thank Vinzent Vogt and Jonathan Leuschner for providing information on these cases.