Germany - Administrative Court of Düsseldorf, 3 September 2015, 22 L 2944/15.A

Country of Decision:
Country of Applicant:
Date of Decision:
03-09-2015
Court Name:
Administrative Court of Düsseldorf
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Germany - AsylvfG (Asylum Procedure Act) - § 26a
Germany - AsylvfG (Asylum Procedure Act) - § 27a
Germany - AsylVfG (Asylum Procedure Act) - § 34
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Headnote: 

The appeal against the transfer of an asylum seeker from Germany to Hungary in the accelerated Dublin procedure is granted and suspensive effect applied to the decision. The applicant may face a risk of inhuman or degrading treatment because of systemic deficiencies in the asylum procedure and reception conditions in Hungary following the entry into force of new Hungarian laws on 1 August 2015, and because of the risk of further removal to Serbia.

Facts: 

The applicant is appealing against a transfer ordered in an accelerated Dublin procedure from Germany to Hungary. The latter is the EU Member State responsible for processing the applicant’s asylum application according to the rules of the Dublin Regulation. 

Decision & Reasoning: 

Although accepting that Hungary is the EU Member State responsible for processing the applicant’s asylum claim under the Dublin Regulation, the Court disputes the position of the German Federal Office for Migration and Refugees that the applicant in fact can be transferred to Hungary. The Court reasons that the applicant indeed cannot legally be transferred to Hungary because this would put him at a serious risk of suffering inhuman or degrading treatment according to Article 4 of the Charter of Fundamental Rights of the European Union (EU Charter) and Article 3 of the European Convention on Human Rights (ECHR) due to the systemic failings in the asylum procedure and reception conditions in Hungary.

The Court then goes on to express that the general presumption in the EU asylum system that every EU Member State constitutes a safe third country where the fundamental rights of asylum seekers are respected, including the principle of non-refoulement, is not in itself an irrefutable presumption.

The Court reflects that a challenge to this presumption does have to meet a high threshold, given the important purpose of the Common European Asylum System. Therefore not every threat to a fundamental right in the receiving Member State would be enough to halt the transfer of an asylum seeker in the Dublin system. However, citing the CJEU ruling in N.S. (C-411/10), the judge reasons that if the Court can be thoroughly satisfied of the probability that such a transfer would represent a risk of inhuman or degrading treatment, suspension of the transfer is justified.

The Court refers to the changes to Hungarian asylum law which came into effect on 1 August 2015, stating that these constitute sufficient evidence of systemic deficiencies in the asylum procedure in Hungary. In particular, the inclusion of Serbia on the list of safe third countries proves the existence of a risk that the applicant, if transferred to Hungary, would be denied access to an asylum procedure in which a substantive evaluation of his reasons for seeking asylum would be examined. The risk exists that the asylum seeker would, for example, be removed to Serbia by the Hungarian authorities without a substantive evaluation of the asylum claim in line with minimum European standards.

According to the Court it is highly doubtful that either the asylum procedure or the reception conditions in Serbia meet the level of the minimum European standards.

Outcome: 

Appeal granted and suspensive effect applied to the transfer decision. The matter is referred to the main proceedings in which further examination is required as to whether the individual in this particular case is exposed to a risk of being denied a substantive examination of his asylum claim or of being exposed to a risk of refoulement

Subsequent Proceedings : 

This case follows a long line of German judgments suspending transfers to Hungary based on recent legislative changes to their asylum system, namely:

VG Augsburg  U.v. 18.8.2015 – Au 6 K 15.50155; VG Würzburg B. v. 13 08.2015 - W 7 S 15.50248; VG Düsseldorf B. v. 11.09.2015 - 8 L 2442.15.A; VG  München U. v. 11.09.2015 - M_23_K_15_50045; VG Augsburg U.v. 18.8.2015 – Au 6 K 15.50155; VG Düsseldorf B. v. 20.8.2015 – 15 L 2556/15.A; VG Saarland B. v. 12.08.2015- 3 L 816.15; VG Düsseldorf B. v. 11.08.2015 - 22 L 2559.15.A; and VG Minden, 02.10.15, 19 L 923/15.A; VG Potsdam, 04.09.2015, 4 L 810/15.A.

Observations/Comments: 

This case summary was written by David Watt, a researcher at the Odyessus Academic Network, Université Libre de Bruxelles (ULB).

Other sources cited: 

Letter to the Serbian Prime Minister from the European Commissioner for Human Rights of 27 November 2013

Hungarian Helsinki Committee information note ‘Building a legal fence’

UNHCR, ‘UNHCR urges Hungary not to amend asylum system in haste’

AIDA, ‘Hungary adopts list of safe third countries of origin and safe third countries’

Amnesty International, ‘Hungary: Change to asylum law puts tens of thousands at risk’

Case Law Cited: 

Germany - VG Düsseldorf, Decision of 21 August 2015 – 8 L 2811/15 A

Germany - OVG Nordrhein-Westfalen, Decision of 10 March 2015 – 14 B 162/15.A -, juris

Germany - BVerwG, Judgment of 19 March 2014 - 10 B 6.14 -, juris, Rdn. 6 ff. m.w.N

Germany - BVerwG, Decision of 17 September 2014 – 2 BvR 1795/14-, juris

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

Germany - OVG Nordrhein-Westfalen, Decision of 3 March 2015 – 14 B 101/15.A -, juris

Germany - OVG Nordrhein-Westfalen, Decision of 3 March 2015 – 14 B 102/15.A -, juris

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

Germany - VG Düsseldorf, Decision of 6 August 2015 – 22 L 616/15 A

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

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