Germany - Administrative Court of Meiningen, 26 January 2015, case no. 1 E 20386/14 Me

Country of Decision:
Country of Applicant:
Date of Decision:
26-01-2015
Citation:
1 E 20386/14 Me
Court Name:
Administrative Court of Meiningen
National / Other Legislative Provisions:
Germany - AsylfG (Asylum Procedure Act) - 26a
Germany - AsylfG (Asylum Procedure Act ) - 34(a)(2)
Germany - AsylfG (Asylum Procedure Act ) - 83(b)
Germany - Constitution 16a(2)
German Asylum Procedure Act (Asylverfahrensgesetz – AsylVerfG) - section 7
Germany - German Asylum Procedure Act – section 26a para. 2
Germany - German Asylum Procedure Act – section 31 para. 4
Germany - German Asylum Procedure Act – section 34a para. 4
Germany - German Act Implementing Directive 2011/95/EU- art. 1 no. 27 b)
Germany - German Act Implementing Directive 2011/95/EU– art. 7
Germany - German Administrative Courts Act (Verwaltungsgerichtsordnung – VwGO) – section 80 para. 5
Germany - German Administrative Courts Act – section 154 para. 1
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Headnote: 

An applicant’s interest in remaining in a Member State pending a decision on their right to remain will prevail if, due to a lack of knowledge about the actual living situation of refugees in the third country and negative public reports regarding such situations, there can be no assurance that the applicant will be safe in said third country.

Facts: 

The applicant is a Syrian of Kurdish ethnicity. In 2013, the applicant left Syria due to fear of persecution for his participation in political demonstrations as well as his Christian religious beliefs. He travelled to Bulgaria where he received an identity card in April 2014. At the end of April, he entered Germany and applied to be recognised as a refugee on 21 May 2014.

A request of the Federal Office for Migration and Refugees for reacceptance in July 2014 was dismissed by the Bulgarian authorities. In December 2014, the Federal Office rejected the applicant’s asylum application on the grounds that the applicant had entered Germany from a safe third country and ordered that he be removed to Bulgaria. The applicant appealed this decision and filed an application to establish the suspensive effect of the action against the Federal Office’s removal order because of the situation of beneficiaries of international protection in Bulgaria. The applicant argued that on the basis of available knowledge beneficiaries of international protection are at risk of facing inhuman and humiliating conditions within the meaning of art. 4 of the Charter of Fundamental Rights of the European Union.

The Federal Office of Migration and Refugees rejected the applicant’s argument, stating that he could not benefit from the Dublin-III-Regulation when another application was successfully completed in a different secure third country.

The Federal Office contended that, based on the ECtHR (Mohammed Hussein et al.  v The Netherlands and Italy), high hurdles have to be overcome before it can be assumed that the asylum procedure in a Dublin third country has grave deficiencies.

The Federal Office further argued that the fact that the living conditions existing in the third country to which an asylum seeker is to be returned are worse than those existing in the European state returning him is not a sufficient basis in and of itself to assume that the provisions of art. 3 of the ECHR have been breached.

The Federal office went on to contend that art. 3 of the ECHR does not require all persons within the territory to be provided with accommodation, be granted financial aid to secure their livelihood or be provided with free medical care. Under European law, a Member State is only obliged to grant beneficiaries of international protection the same status as their own citizens. As regards accommodation, health care and access to the labour market in Bulgaria, this would be the case. It also states that, since Bulgaria has already granted the Applicant recognition of international protection, it is also obliged to reaccept the Applicant.

Decision & Reasoning: 

The Court examined whether Bulgaria grants sufficient protection to the Applicant, and thus, whether, he could reasonably be expected to return to Bulgaria. At the time of making its decision, the Court was unable to assess the situation of returnees having the status of beneficiaries of international protection in Bulgaria with sufficient certainty.

The Court further considers that it cannot be assumed that sufficient protection is granted to beneficiaries of international protection in cases where there are grave and systemic violations of rights in a particular country within the meaning of art. 4 of the Charter of Fundamental Rights of the European Union. As examples of such violations, the court cited arbitrary detentions, appalling living conditions, the failure to meet minimum medical standards, the lack of access to schools and inadequate accommodation conditions.

Further the Court reasoned that no credible knowledge had been available as to the living situations of persons having the status of beneficiaries of international protection or refugees, respectively, in Bulgaria since April 2014 and that, according to the EASO report of February 2014, the conditions for the reception of refugees in Bulgaria had significantly improved. However, according to the Court, there had been recent recurring negative reports – by the press or by parties to the proceedings pending before the Division – about the safety and living situation in Bulgaria. Furthermore the Court stated that the EASO support-plan expired in September 2014 and, as regards the provision of support, there were not yet any results available prior to the date of the decision. In particular, there was still no information available as to whether Bulgaria would also be able to cope with the refugees’ situation without any European support being provided.

As a result of these uncertainties regarding the safety of the living conditions in Bulgaria, the Court held that the Applicant’s interest in remaining in the Federal Republic of Germany prevails over the public interest in the removal order’s enforcement. 

Outcome: 

The application was granted. The Court ordered that the suspensive effect of the Applicant’s appeal against the removal order included in the decision of the Federal Office for Migration and Refugees dated 5 December 2014 be established.

Subsequent Proceedings : 

The main proceedings will be conducted before the Administrative Court of Meiningen under the case no: 1 K 20385/14 Me. 

Observations/Comments: 

This finding follows similar cases which have found systemic shortcomings in the treatment of protection status holders in Bulgaria, namely VG Oldenburg, decision of 20 August 2015 12 B 3033/15 and from the same court decision of 27 January 2015 12 B 245/15.

This case summary was written by Linklaters LLP.

Other sources cited: 

German-Bulgarian agreement regarding the admission and transit of persons (readmission agreement) (Deutsch-Bulgarisches Abkommen über die Übernahme und Durchbeförderung von Personen (Rückübernahmeabkommen)) of 7 March 2006

EASO, report of February 2014

UNHCR, update of 15 April 2014

Case Law Cited: 

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

Germany - Federal Administrative Court, 17 June 2014, 10 C 7.13

Germany - Administrative Court of Gelsenkirchen, 17 December 2014, 18 a L 1808/14.A

Germany - Administrative Court of Meiningen, 25 November 2014, 1 K 20154/14 Me

Germany - Administrative Court of Meiningen, 25 November 2014, 1 K 20135/14 Me

Germany - Administrative Court of Meiningen, 25 November 2014, 1 K 20122/14 Me

Germany - Administrative Court of Meiningen, 25 November 2014, 1 K 20120/14 Me

Germany - Administrative Court of Meiningen, 25 November 2014, 1 K 20146/14 Me

Germany - Administrative Court of Kassel, 8 September 2014, 5 L 1415/14.KS.A