Germany - Administrative Court of Potsdam, 04 February 2016, case no. 6 L 87/16.A

Country of Decision:
Country of Applicant:
Date of Decision:
04-02-2016
Citation:
Case no. 6 L 87/16.A
Court Name:
Administrative Court of Potsdam
National / Other Legislative Provisions:
Germany - § 123 (1) sentence 1 VwGO (Code of Administrative Court Procedure)
Germany - § 88 VwGO (Code of Administrative Court Procedure)
Germany - § 80 (5) VwGO (Code of Administrative Court Procedure)
Germany - § 43 (1) VwGO (Code of Administrative Court Procedure)
Germany - § 80 AsylVfG (Asylum Procedure Act)
Germany - § 34a AsylVfG 1992 (Asylum Procedure Act)
Germany - § 43 Abs 2 VwVfG (Administrative Procedure Act)
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Headnote: 

A court’s decision on a request for suspensive effect of an appeal against a deportation order does not affect the expiration of the 6-month period set out in Art. 29(2) of the Dublin III Regulation. According to German law, a deportation order ceases to be effective upon expiration of this 6-month period.

Facts: 

Germany submitted a request to take back the Applicant to Italy on 16 July 2015. Italy did not reply to this request. On 31 July 2015 Italy was deemed to have accepted the request to take back. On 25 September 2015, the German Federal Office for Migration and Refugees (the “Federal Office”) issued an order for deportation of the Applicant to Italy. The deportation was to take place on 22 February 2016. In the meantime, the applicant filed an appeal to rescind the order and also filed a request to order the suspensive effect of his appeal. The request for suspensive effect was denied by decision dated 4 November 2015. The Applicant then filed a request to suspend the deportation order on 31 January 2016, claiming that the 6- month period under the Dublin III Regulation for deportation had expired on 30 January 2016 (i.e. 6 months after Italy was deemed to have accepted the request to take back). 

Decision & Reasoning: 

The Federal Office’s deportation order ceased to be effective due to the expiration of the 6-month period set out in Art. // 29(1) of the Dublin III Regulation. The Applicant’s first request to order the suspensive effect of his appeal to rescind the deportation order (i.e. the request denied on 4 November 2015) did not have an effect on the expiration of the 6-month period. In rendering its decision, the Court dealt with the following issues:

1. The effect of court decisions on requests for suspensive effect on the 6-month period set out in Art. 29 of the Dublin III Regulation The Court first addressed the effect a court decision on a request for suspensive effect has on the 6-month period set out in Art. 29 of the Dublin III Regulation. The Court found that a court’s issuance of a decision on a request for suspensive effect has no bearing on the expiration of the 6-month period. The Court argued that another view would falsely ignore § 80 (5) of the German Code of Administrative Court Procedure (VwGO), which states that a request for suspensive effect of a filed appeal has itself no suspensive effect within the meaning of Art. 27 (3) of the Dublin III Regulation (“suspensive effect to an appeal or review”). This is because an appeal to a deportation order under German administrative law does not per se have suspensive effect. The only legal protection provided is that under § 34a (2) of the Asylum Procedure Act (AsylG), which foresees a statutory non-enforceability of administrative decisions for the duration of the summary proceedings and only for requests for suspensive effect submitted on time.

2. The effect of the expiration of the 6-month period on deportation orders

The Court then addressed the effect of the expiration of the 6- month period under German law. The Court held that the expiration of the 6-month period rendered the deportation order automatically ineffective pursuant to § 43(2) of the German Administrative Procedure Act (VwVfG) and the Court did not see the need for an explicit annulment of the Federal Office’s deportation order. According to the Court, applying this provision is in line with the objective of the Dublin III Regulation to quickly and effectively determine the responsible Member State in the interests of the involved Member States and the respective applicant. 

Outcome: 

Applicant succeeded in his action.

Observations/Comments: 

The Asylum Act was passed after this decision was rendered. According to a subsequent decision by the Federal Administrative Court, now if an applicant has filed an appeal against a transfer decision and has lodged a request for the appeal to have suspensive effect, and the 6- month period that started at the time of the acceptance of the request to take back has not expired, the time of the final decision of the appeal will be the start of the 6-month period. See the decision by the Federal Administrative Court (Bundesverwaltungsgericht), 27 April 2016, 1 C 22.15 regarding the two alternative starting points under Art. 29(1) of the Dublin III Regulation, i.e. the (deemed) acceptance by the other Member State, and the final decision or review of an appeal with suspensive effect. 

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 - Administrative Court of Potsdam - VG 6 K 1344/14.A

Germany - Administrative Court of Potsdam - VG 6 L 211/14.A