Germany - Administrative Court of Potsdam, 4 September 2015, case no. 4 L 810/15.A

Country of Decision:
Country of Applicant:
Date of Decision:
04-09-2015
Citation:
Decision of 04.09.2015, case no. 4 L 810/15.A
Court Name:
Administrative Court of Potsdam
Relevant Legislative Provisions:
International Law
International Law > 1951 Refugee Convention
Council of Europe Instruments
European Union Law
Council of Europe Instruments > ECHR (Frist Protocol)
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation)
National / Other Legislative Provisions:
Germany - Code of Administrative Court Procedure - Art 80(5)
Germany - Code of Administrative Court Procedure - Art 154(1)
Germany - AsylvfG (Asylum Procedure Act) - § 27a
Germany - AsylVfG (Asylum Procedure Act) - § 34
Germany - AsylfG (Asylum Procedure Act ) - 80
Germany - AsylVfG (Asylum Procedure Act) - 83b
AsylVfG (Asylum Procedure Act) - 75(1)
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Headnote: 

An Applicant’s interest in remaining in a Member State prevails over the public’s interest in deporting the Applicant to the Member State in which the Applicant first sought asylum if there is a predominant degree of likelihood that the Applicant will be subject to inhuman or degrading treatment in the other Member State (e.g. because of significant capacity problems and a change to its asylum law).

Facts: 

The Applicant is of Afghan nationality. On 19 March 2015, he applied for asylum in Germany. On 21 January 2015, prior to applying for asylum in Germany, the Applicant sought asylum in Hungary.

The German Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) (the “Federal Office”) requested Hungary and Bulgaria to take over the matter. The court did not make a statement on the reasons for request to Bulgaria.

The Hungarian immigration authorities stated in a letter dated 26 May 2015 that they would examine the Applicant’s asylum application made in Hungary. As a result, on 11 June 2015 the Federal Office declared the Applicant’s German asylum application inadmissible and ordered the deportation of the Applicant to Hungary. The Federal Office based its decision on Sections 27a and 34a of the German Asylum Procedure Act (Asylverfahrensgesetz) (the “German Asylum Procedure Act”).

The Applicant appealed the decision of the Federal Office to the Administrative Court of Potsdam.

The Applicant also filed an application to establish the suspensive effect of his appeal pursuant to Section 80 (5) of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung). 

Decision & Reasoning: 

The Administrative Court first addressed the issue of whether the Hungarian immigration authorities were indeed to be determined responsible for examining the Applicant’s asylum application. The court stated that the jurisdiction of the Hungarian immigration authorities was questionable because the Federal Office had requested that Bulgaria take over the matter, even though, the Applicant had originally sought asylum in Hungary. The court concluded, however, that it did not have to reach a conclusion on this question as the ordered deportation to Hungary was illegal as a result of the current state of affairs in Hungary.

The principal issue examined by the Administrative Court was whether the asylum procedures in Hungary contained systemic defects/deficiencies. The court noted that it had rejected this conclusion in previous judgments, however, in the decision at hand, the court found that the asylum system in Hungary demonstrated systemic defects/deficiencies.

The Administrative Court considered the following facts determinative in reaching its conclusion:

·         There are significant capacity problems in Hungary which are more pronounced than those in other European countries. The Court referenced various similar decisions made by other German administrative courts (Administrative Court of Saarland, 12.08.2015 – L 776/15; Administrative Court Kassel, 07.08.2015 – 3 L 1303/15.KS.A; Administrative Court Münster, 07.07.2015 – 2 L 858/15.A) to substantiate its view.

·         On 6 July 2015, the Hungarian government resolved to amend its legislation. The amended provisions came into force on 1 August 2015. Under these amended provisions, the court stated that asylum procedures are shortened with the result that access to effective judicial protection is significantly restricted or unavailable. In addition, the amended provisions provide that asylum seekers, including women and children, who illegally enter Hungary can be imprisoned for a longer period of time than before. Furthermore, asylum seekers entering from countries which the Hungarian authorities deem to be safe third countries may now be deported without having access to the asylum procedure. According to the Hungarian authorities, Serbia, Albania, Macedonia, Bosnia and Herzegovina, Kosovo, Montenegro and Greece are “safe” third countries. As a result, the Administrative Court reasoned that if the Applicant was deported to Hungary, he would be at risk of further deportation to Greece without receiving an appropriate examination of his grounds for seeking asylum in Hungary. According to the court, this constituted an infringement of the principle of non-refoulement contained in both the Geneva Convention and the European Convention on Human Rights (the “ECHR”). The Court also cited the deep concern of the UN High Commissioner for Refugees that the amendments to the Hungarian asylum legislation allow for the deportation of asylum seekers to potentially unsafe third countries.

·         Finally, the court noted that recent statements by the right-wing national government of Hungary create a climate which worsens the situation for refugees even further.

Due to these significant capacity problems and the amendment of Hungary’s asylum legislation, the court, in contrast to its previous decisions, found that a predominant degree of likelihood existed that the Applicant would be submitted to inhuman or degrading treatment if he was deported to Hungary. The court held that the Applicant’s application to establish the suspensive effect of his appeal was admissible and founded.

Outcome: 

Application granted. The suspensive effect of the appeal filed against the decision of the Federal Office dated 11 June 2015 was applied.

Subsequent Proceedings : 

The case is on appeal before the Administrative Court of Potsdam under case no. 4 K 1553/15.A.

Observations/Comments: 

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. 03.09.2015 - 22 L 2944.15.A; VG Düsseldorf B. v. 11.08.2015 - 22 L 2559.15.A; and VG Minden, 02.10.15, 19 L 923/15.A 

This case summary was completed by Linklaters LLP. 

Other sources cited: 

Art. 9 (1) Eurodac Regulation

Art. 24 (4) Eurodac Regulation

UNHCR (UN High Commissioner for Refugees), UNHCR urges Hungary not to amend asylum system in haste, 03.07.2015, http://www.ecoi.net/local_link/307005/444377_de.html  

Case Law Cited: 

Germany - Administrative Court Münster, 07.07.2015 – 2 L 858/15.A

Germany - Administrative Court Kassel, 07.08.2015 – 3 L 1303/15.KS.A

Germany - Administrative Court of Saarland, 12.08.2015 – L 776/15