Germany - Administrative Court of Trier, 27 March 2019, 7 L 1027/19.TR

Country of Decision:
Country of Applicant:
Date of Decision:
27-03-2019
Citation:
VG Trier, 7 L 1027/19.TR
Court Name:
Administrative Court Trier
National / Other Legislative Provisions:
Germany: § 42 para. 2
§ 52 no. 2
no.3
§ 123 VwGO (Code of Administrative Procedure)
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Headnote: 

There is a case of urgent necessity concerning interim measures according to § 123 VwGO obliging a Member State to accept a take charge request regarding  the asylum applications of family members of a person entitled to subsidiary protection in that state when the decision on an asylum application of these family members is imminent in the requesting state. 

Facts: 

A father from Syria that was granted protection in Germany applied for family reunification regarding his three children and his wife that were in Greece at that time.

The Greek Dublin unit had requested the Federal Republic of Germany to take charge of the asylum applications within three months after his children and his wife applied for asylum in Greece. Within three weeks after the first refusal from Germany, Greece requested a new examination which was refused by Germany again. The father then submitted an application for interim measures concerning the responsibility for German authorities in a German Court. 

Decision & Reasoning: 

The wife and children are authorized to file an application in analogy to § 42 para. 2 VwGO. All of them have a subjective right to be transferred to the member state responsible for the examination of their asylum application due to the best interest of the children and due to the high importance of family unity that can be drawn from art. 8 and art 17 Dublin Regulation.

A legitimate interest in legal protection exists for all of them. Art. 27 Dublin Regulation only stipulates legal remedies against transfer decisions but taking into account Art. 47 ECHR a case like should also enjoy a right to an effective remedy against the decision.  

Such remedy is not given in Greece since Greek Courts cannot oblige German institutions like the BAMF. Additionally, Art. 27 Dublin regulation does not preclude a nationally stipulated legal protection that exceeds the one regulated in Art. 27 Dublin regulation.  

An interim measure according to § 123 VwGO is granted, when there is an urgent necessity to do so and if the applicant has a right to it.

Decisions in the main proceedings can be pre-empted if otherwise there would be unreasonable disadvantages that cannot be reverted by a decision in the main proceedings.  Furthermore, a success for the applicant in the main proceedings must be probable.

Germany is responsible for the examination of the children's asylum applications according to Art. 9 Dublin regulation. Under that provision a Member State in which an applicants’ family member was granted subsidiary protection is responsible for the asylum application. Precondition is, that the wish to be transferred was submitted in written form. According to Art. 2 lit. g Dublin regulation children are family members of their parents. Also, a written application was filed by the father as well as the children.

Even if one does not consider the wife as family member pursuant to Art. 2 lit. g Dublin regulation, there is a responsibility in the present case resulting from Art. 11 lit. a Dublin regulation.

There was no transfer of responsibility to Greece in accordance with Art. 21 para. 2 and 20 para. 2 Dublin regulation that stipulates a deadline for the request that charge be taken by another Member State. Greece filed such request within three months.

Also, the deadline to file a new request within three weeks has been met by the Greek Dublin-Unit. Consequently, there is no transfer of responsibility according to Art. 5 para. 2 of the Implementing Regulation 2003/1560/EC.

Moreover, there is an urgent necessity for an interim measure. The decision on the asylum application in Greece is imminent due to the refusals of Germany to take responsibility for examining those applications. As soon as there is a decision by Greek authorities, the children as well as the wife don't fall under the Dublin regulation anymore. A family reunification on the basis of the Dublin regulation would not be possible anymore. This would be unreasonable and therefore the application for an interim measure is granted. 

Outcome: 

Application granted.

Observations/Comments: 

In light of the deadline stipulated in Art. 5 para. 2 EC regulation 2003/1560/EC the case that was ruled in VG (Administrative Court) Berlin, decision, 15. March 2019 — 23 L 706.18 A was way more problematic. The deadline was not met and still there was responsibility of Germany due to humanitarian reasons according to Art. 17 para. 2 Dublin regulation

This case summary was written by Michael Spath, law graduate of the University of Cologne

Other sources cited: 

Domestic Case Law Cited

- Germany - VG (Administrative Court), Neustadt an der Weinstraße, decision, 26 February 2019 — 2 L 181/19.NW

- Germany - VG (Administrative Court) Münster, decision, 20 December 2018 — 2 L 989/18

- Germany - BVerwG (Federal Administrative Court), decision, 27 June 1984

- Germany - VG (Administrative Court) Berlin, decision, 15. March 2019 — 23 L 706.18 A

Case Law Cited: 

CJEU - C‑47/17 and C‑48/17, X & X