Germany - Bavarian Administrative Court (Munich), 7 January 2015, M 11 S 14.50682

Country of Decision:
Country of Applicant:
Date of Decision:
Decision of 07.01.2015 - M 11 S 14.50682
Court Name:
Bavarian Administrative Court (Munich)
National / Other Legislative Provisions:
Germany - Code of Administrative Court Procedure - Art 80(5)
Germany - Code of Administrative Court Procedure - Art 113(1)(1)
Germany - Code of Administrative Court Procedure - Art 154(1)
Germany - AsylvfG (Asylum Procedure Act) - § 27a
Germany - AsylfG (Asylum Procedure Act ) - 34(a)(1)
Germany - AsylfG (Asylum Procedure Act ) - 80
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Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.


The Applicants have, according to their own statement,  Afghan nationality and had entered Germany  and applied for asylum (the “German Application”) on 16 August 2014 after transiting through Hungary. While in Hungary, the Applicants also submitted an application for asylum (the “Hungarian Application”).  One of the Applicants is affected by depression while the other is blind and severely disabled.

On 8 October 2014, the competent Hungarian body agreed to a request by the German Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) (“Federal Office”) to receive the applicants in Hungary. As a result, the Federal Office declared the Applicants’ German asylum application inadmissible in November 2014 and ordered the deportation of the Applicants.

The Federal Office’s decision was based on §27a of the Asylum Procedure Act which the Federal Office interpreted as making the German Application inadmissible because the prior Hungarian Application made Hungary the competent country for this procedure according to art. 18 (1) of the Dublin III Regulation. The Federal Office also based its decision on the fact that exceptional humanitarian reasons in the shape of “systemic flaws” in the Hungarian system which would entitle Germany to exercise the examination of an application pursuant to art. 17 (1) Dublin III Regulation, were not apparent. Furthermore, the continuation of medical treatment for the Applicants was assumed to be possible in Hungary.

The applicants filed a suit against the Federal Office’s decision on 17 November 2014 citing the European Court of Human Rights (ECtHR) decision in Tarakhel v Switzerland. In this decision the Court stated that the material issue was not whether “systemic flaws” were present but rather whether there is a higher need for protection due to the presence of children and the danger of destroying family unity by ordering the transfer.

The Applicants applied for a declaration of the suspensory effect of their suit from 17 November 2014 (§ 80 V Code of Administrative Court Procedure).

Decision & Reasoning: 

The administrative court declared the application of interim measures (i.e. declaring the suspensory effect of the filed suit) admissible and founded, reasoning that, due to public reports regarding inhuman treatment and poor reception conditions in the first country of asylum, it may not be possible to effect a transfer in compliance with Dublin II. In such circumstances, the Applicants must have the benefit of doubt and their private concerns outweigh the interest of immediate enforcement of the ordered transfer.

The principal issue for the Court was whether the Applicants could be legally transferred back to Hungary in accordance with the Dublin II Regulation. The Court initially summarized the law regarding the transfer of the Applicants back to Hungary, the first country of asylum.  It stated that, according to §27a Asylum Procedure Act, an application for asylum in Germany is inadmissible if another state is, by European law or international treaty, responsible for the implementation of the asylum procedure. Under §34a I 1 Asylum Procedure Act, transfer to the competent country can be ordered as soon as it is certain that the transfer can be carried out. In this case, the Court stated that according to art. 13 (1) Dublin III Regulation, Hungary, which agreed to receive the Applicants, would be considered responsible as the first country of asylum. 

However, the Court referred to the Abdullahi judgment of the Court of Justice of the European Union, which held that an asylum seeker may avoid transfer if they can assert that there are systemic flaws in the first country of asylum’s asylum procedure and the reception conditions in such country cause serious apprehension of an actual danger of inhuman or degrading treatment. The applicant, however, cannot request a comprehensive review of the competence of the asylum procedure of the member state. The Court further cited the N.S and M.E CJEU judgment which interpreted Art. 4 of the ChFREU as preventing a member state from returning an asylum seeker to the first country of asylum pursuant to the Dublin II Regulation if the transferring country cannot be unaware that “systemic flaws” exist in the asylum procedure in the first country of asylum.

Based on the facts of the case, the Court stated that there was a question over the existence of systemic flaws in the asylum procedures in Hungary and of the legality of a transfer in accordance with art. 4 of the Charter (art. 3 ECHR). The Court noted that other German administrative courts had disagreed over this question. While a few years ago systemic flaws in the procedure in Hungary were denied, a 2013 change in Hungarian law allowing for the imprisonment of asylum seekers provided new insight into the issue. According to the Court, reports by the UNHCR, ECRE, and the Hungarian Helsinki Committee consider the legal grounds for imprisonment under the law too wide. The Court also cited a report by Pro Asyl, which concluded that the increased risk of systematic defects in reception conditions in Hungary, renders Hungary an unsafe place for asylum seekers as well as reports concerning unhygienic conditions, low levels of medical care as well as the detention of vulnerable persons. The Court considered this fact directly relevant to the Applicants in light of their own disabilities.

Based on the varying public reports on conditions in Hungary, the Court reasoned that a decision regarding the German Application could not be decided and therefore the benefit of doubt had to be given to the Applicants because there were credible and significant reasons which indicated the illegality of the ordered transfer.

The Court reserved giving an extensive examination of these issues, leaving it for consideration in the principal proceedings relating to the applicant’s German asylum application.


Application of the suspensory effect granted.


This case summary was completed by Linklaters LLP. 

Case Law Cited: 

Germany - Administrative Court Düsseldorf, Decision dated 28.5.2014 – 13 L 172/14.A

Germany - Administrative Court Würzburg, Decision dated 25.8.2014 – W 6 S 14.50100

Germany- Federal Administrative Court, Decision dated 19.3.2014 – 10 B 6/14

Germany - Federal Administrative Court, Decision dated 6.6.2014 – 10 B 35/14

Germany - Administrative Court München, Judgment dated 29.8.2014 – M 24 K 13.31294

Germany - Administrative Court Stuttgart, Judgment dated 26.6.2014 – A 11 K 387/14

Germany - Administrative Court München, Decision dated 18.12.2014 – M 17 S 14.50694

Germany - Administrative Court Stade, Decision dated 14.7.2014 – 1 B 862/14

Germany - Administrative Court of Baden-Württemberg, Decision dated 6.8.2013 – 12 S 675/13

Germany - Administrative Court München, Decision dated 31.10.2014 – M 16 S 14.50535

Germany - Administrative Court Gelsenkirchen, Decision dated 2.10.2014 – 10a L 1415/14.A

Germany - Administrative Court Oldenburg, Decision dated 18.6.2014 – 12 B 1238/14

Germany - Administrative Court Sigmaringen, Decision dated 22.4.2014 – A 5 K 972/14

Germany - Administrative Court Freiburg, Decision dated 7.3.2014 – A 5 K 93/14

Germany - Higher Administrative Court of Sachsen, Decision dated 24.7.2014 – A 1 B 131/14

Germany - Higher Administrative Court of Sachsen-Anhalt, Decision dated 31.5.2013 – 4 L 169/12

Germany - Administrative Court of Baden-Württemberg, Decision dated 6.8.2013 – 12 S 675/13