Germany - Administrative Court (of) Hannover, case no. 1 B 5946/15, 7 March 2016

Country of Decision:
Country of Applicant:
Date of Decision:
07-03-2016
Citation:
1 B 5946/15
Court Name:
Administrative Court (of) Hannover
National / Other Legislative Provisions:
Germany - Section 27a AsylG(Asylum Act)
Germany - Section 34 a AsylG
Germany - Section 76AsylG
Germany - Section 77 AsylG
Germany - Section 80 (5) VwGO(Code of Administrative Court Procedure)
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Headnote: 

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

Facts: 

The Applicants, a mother with her three children (born in 2004, 2006 and 2009), are Russian nationals of the Yazidi faith. Together with the husband and father of the children, the Applicants entered France in autumn of 2012 and filed an application for international protection which was rejected by the French authorities. In 2015, the Applicants entered Germany and filed a subsequent application for international protection.

The Applicants submitted to the German authorities that the father of the children had been extradited from France to Germany due to a criminal offence and is  serving a prison term of nine years. Consequently, the Applicants were left alone in France where the mother subsequently suffered a mental breakdown. The Applicants also submitted that they were presently receiving support from the children’s grandparents who are German nationals. The children were attending school in Germany and wished to stay close to their father.

Following the comparison of the fingerprints with the EURODAC database, the Federal Office noted that the Applicants had already filed an application for international protection in France. The Federal Office thus filed a request to take back which was accepted by the French authorities in accordance with Article 18 (1) (d) of the Dublin-III-Regulation.

Consequently, the Federal office (i) declared the application for international protection filed in Germany as inadmissible, (ii) ordered the applicants to be deported to France, and (iii) limited the statutory prohibition of entry or stay to 12 months starting from the date of the deportation.

The Federal Office held that the applications were inadmissible according to Section 27a of the Asylum Act (AsylG) because France was responsible to examine the applicants’ claims for international protection following their applications in 2012. Since there were no extraordinary humanitarian grounds apparent, there were no reasons to invoke the discretionary clause under Article 17 (1) of the Dublin-III-Regulation.

The Applicants appealed the decision to the Administrative Court of Hannover (the “Court”)(File 1 A 5945/15) and separately claimed interim legal protection against the deportation order of the Federal Office (File 1 B 5945/15) pursuant to Section 80 (5) of the German Code of Administrative Court Procedure (VwGO).

Decision & Reasoning: 

The Court granted the Applicants’ request for interim legal protection and ordered the appeal to have suspensive effect.

In its decision, the Court addressed three main aspects establishing the suspensive effect of the Applicants’ appeal:

1. Which circumstances are sufficient to derogate from the provisions on responsibility laid down in the Dublin-III-Regulation according to Art. 17 (1) Dublin-III-Regulation?

Article 17 of the Dublin-III-Regulation does not specify the circumstances under which a Member State may derogate from the provisions on responsibility. However,  recital 17 of the Dublin-III-Regulation explicitly states that Member States may derogate from the binding criteria of responsibility laid down in Art. 3(1) of the Dublin-III-Regulation based on humanitarian or compassionate grounds in order to bring together family members, relatives, or  persons that are related in any other way. In this context, recitals 13 and 14 of the Dublin-III-Regulation set out that the best interests of the child and the respect for family life should be primary considerations when applying the Regulation. Article 6 (3)(a) of the Dublin-III-Regulation also stipulates that Member States shall take due account of the possibility of family reunification when assessing the best interests of the child.

Applying this, the Court held that the Federal Office failed to take due account of these considerations in the assessment of the discretionary clause since it disregarded the possibility of  family reunification and  the particular interest of the children in maintaining regular contact with their father during his imprisonment in Germany. Additionally, the support of the applicants by the grandparents, who are residing in Germany, in particular with regards to the care and upbringing of the children due to the mothers’ mental illness, would have had to be taken into account.

The Court therefore concluded that there were exceptional circumstances which justified a derogation from the provisions on responsibility pursuant to Article 17 of the Dublin-III-Regulation, taking into consideration humanitarian grounds and such of family reunification

2. Does the Federal Office have discretionary powers in such a case?

In general, Federal Office enjoys discretionary powers when applying Art. 17 (1) of the Dublin-III. However, the Court concluded that in cases involving humanitarian considerations there may be no room for discretion by the Federal Office. In the Court’s view there was no possible action other than the invocation of the discretionary clause in order to safeguard the primary objectives of the Dublin-III-Regulation, namely the best interests of the child and the support of family reunification.

3. Can the provision of the Dublin-III-Regulation governing procedural aspects of a Member State’s responsibility for examining an application for international protection provide for subjective rights of the individual?

In the Court’s view, the procedural rules laid down in the Dublin-III-Regulation, for example the rules on responsibility or time limits ,do generally not provide for subjective rights of the individuals since such rules merely govern the (legal) relationship between the Member States.

However, the Court held that Article 17 of the Dublin-III-Regulation constitutes an exemption given that the discretion granted when assessing the discretionary clause aims precisely at taking into consideration humanitarian and compassionate grounds. Article 17 of the Dublin-III-Regulation therefore governs not only the legal relationship between Member States but also serves to protect human rights/fundamental rights. Consequently, the Court concluded that Article 17 of the Dublin-III-Regulation serves to protect rights of individuals and therefore provided the Applicants with a subjective right which can be enforced in a court of law.

Outcome: 

The Court granted the Applicant’s request for interim legal protection and ordered  the Applicants’ appeal have suspensive effect (against the Federal Office’s deportation order to France).

Subsequent Proceedings : 

The Court’s decision no. 1 B 5946/15 is limited to the Applicants’ claim for interim legal protection against the Federal Office’s deportation order and cannot be appealed.

Observations/Comments: 

This case summary was written by Linklaters LLP.

It was proof read by Ann-Christin Bolter, an LLM graduate in Human Rights Law at Queen Mary's Univeristy, London. 

Case Law Cited: 

Germany - Administrative Court Minden, 17.08.2015 - case no. 10 K 536/15.A

Germany - Administrative Court Hannover, 16.02.3015 - case no. 10 B 403/15

Germany - Federal Administrative Court, 16.11.2015 - case no. 1 C 4/15

Germany - District Court Hannover, 24.09.2013 - case no. 217 Ls 3171 Js 46313/04 (307/13)

Germany - Higher Administrative Court of Lower Saxony, 14.12.2015 – case no. 8 PA 199/15