Germany - Administrative Court Munich, 4 August 2016, M 11 K 15.31006

Country of Decision:
Country of Applicant:
Date of Decision:
04-08-2016
Citation:
M 11 K 15.31006
Court Name:
Administrative Court of Munich
National / Other Legislative Provisions:
Germany - § 113 (1) 1 VwGO (Code of Administrative Court Procedure)
Germany - § 60 (1)
(2) AufenthG (Residence Act)
Germany - AsylG (Asylum Act) - Article 4(1)
Germany - AsylG (Asylum Act) - Article 71
Germany - AsylG (Asylum Act) - Article 71a
Germany - § 51 (1)
(2)
(3) VwVfG (Administrative Procedure Act)
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Headnote: 

An application for asylum filed prior to 20 July 2015 cannot be considered inadmissible because subsidiary protection has already been granted by another Member State (if the protection applied for is more favourable than the existing protection). The assessment of the admissibility of an application for asylum filed prior to 20 July 2015 is subject to the laws, regulations and administrative provisions adopted pursuant to the now superseded Asylum Procedures Directive (Directive 2005/85/EU) which provided for inadmissibility of an application for asylum if refugee status had already been granted by another Member State. 

Facts: 

The Applicant travelled to Germany on 16 May 2014 and applied for asylum on 6 June 2014. Before that, the Applicant had also applied for asylum in Italy on 7 August 2013 where he was granted subsidiary protection. On 8 May 2015, the German Federal Office for Migration and Refugees rejected the application for asylum in Germany and ordered the deportation of the Applicant to Italy on the basis that the Applicant could not seek refugee status in Germany after already having been granted subsidiary protection by the Italian authorities. On 28 May 2015, the Applicant applied for an accelerated procedure and challenged the administrative decision of 8 May 2015 requesting that the German authorities grant him refugee status. 

Decision & Reasoning: 

The Court found that the administrative decision of 8 May 2015 was unlawful as it was based on legal provisions which came into force after the application for asylum had been filed. Under § 60 (1), sentence 3 and (2), sentence 2, of the German Residence Act, German authorities are not obliged to examine or grant refugee status or subsidiary protection if a decision in this regard is already in place. In addition, Article 33 (2) (a) of the Asylum Procedures Directive 2013/32/EU (the “2013 Directive”) provides that a country can reject an application for international protection if international protection, either by way of refugee status or by way of subsidiary protection, has already been granted by another Member State. Pursuant to the transitional provision of Article 52 sentence 1, of the 2013 Directive, however, any application filed prior to 20 July 2015 is subject to the laws, regulations and administrative provisions adopted pursuant to the earlier Asylum Procedures Directive (Directive 2005/85/EU) (the “2005 Directive”). Under the 2005 Directive, an application for asylum is inadmissible if another Member State has already granted refugee status, but not if another Member State has only granted subsidiary protection (as in the case at hand). On the basis that the German application was filed on 6 June 2014, the earlier grant of subsidiary protection in Italy does not render the application for higher protection, such as the refugee status, inadmissible in Germany. The 2013 Directive will only regulate applications filed prior to 20 July 2015 if premature application would be favourable to the applicant, but not if – as in the case at hand – premature application would be unfavourable to the applicant. The Court concluded that the Applicant’s application for refugee status in Germany could not be legitimately rejected by the German Federal Office for Migration and Refugees based on the new Asylum Procedures Directive 2013/32/EU and § 60 (2), sentence 2 of the German Residence Act.

Outcome: 

Plaintiff succeeded in his action. The Federal Office’s order of 8 May 2015 was rescinded. 

Observations/Comments: 

This case summary was written by Linklaters LLP.

This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.

Case Law Cited: 

Germany - Federal Administrative Court, 23 October 2015, case no. 1 B 41.15

Germany - Federal Administrative Court, 30 September 2015, case no. 1 B 51.15

Germany - Administrative Court Ansbach, 23 February 2016, case no. AN 3 K 15.50096

Germany - Higher Administrative Court of Bavaria, 06 March 2015, case no. 13 a ZB 15.50000

Germany – Federal Administrative Court, 16 November 2015, 1 C 4.15

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