Germany - Federal Administrative Court, 23 October 2015, 1 B 41.15

Country of Decision:
Country of Applicant:
Date of Decision:
23-10-2015
Citation:
1 B 41.15
Court Name:
Federal Administrative Court
National / Other Legislative Provisions:
Germany - AsylvfG (Asylum Procedure Act) - § 27a
Germany - AsylVfG (Asylum Procedure Act) - § 34
Germany - AsylvfG (Asylum Procedure Act) - §34a
Germany - AsylvfG (Asylum Procedure Act) - § 71a
Germany - AufenthG (German Residence Act) - Article 59
Germany - AufenthG (German Residence Act) - Article 60
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Headnote: 

The rules of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“International Protection Directive”) do not prohibit the review of an application for asylum in Germany in a case where an applicant has previously been granted subsidiary protection in another Member State, if such application for asylum has been filed before 20 July 2015. This is because the inadmissibility of applications filed before 20 July 2015 is governed by the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“Asylum Procedures Directive”). According to Article 25 of the Asylum Procedures Directive, Member States may consider an application for asylum as inadmissible if another Member State has granted refugee status, but not if another Member State has granted subsidiary protection. 

Facts: 

The Applicant, according to his own account, a citizen of Afghanistan, entered Germany in August 2013 together with his partner and their children and filed an application for asylum. The family had previously been granted subsidiary protection in Hungary. On 13 December 2013, the German Federal Office for Migration and Refugees (the “Federal Office”) denied the application as inadmissible and issued an order for the Applicant to be deported. The Applicant appealed the order and the appeal was granted by the Administrative Court of Stuttgart (Verwaltungsgericht Stuttgart) on 28 July 2014. On 28 April 2015, the Federal Office issued a “supplementary order” (“Ergänzungsbescheid”) with the intention to change the initial deportation order and ordering a threat of deportation (Abschiebungsandrohung) to Hungary. The Federal Office also appealed the decision of the Administrative Court of Stuttgart to the Higher Administrative Court of Mannheim (Verwaltungsgerichtshof Mannheim). The Applicant joined the appeal with the goal of further changing the Federal Office’s decision in his favour (accessory appeal – Anschlussberufung). On 29 April 2015, the Court of Appeal ruled that the deportation order issued by the Federal Office was no longer relevant (erledigt) because Hungary’s previous responsibility to review the Applicant’s application had ceased to apply when the Federal Office had made use of its sovereignty right (Selbsteintrittsrecht) with respect to the other family members. The Court of Appeal further argued that the fact that the Applicant had been granted subsidiary protection in Hungary would not prevent the Applicant’s right for a review of his application by the Federal Office under applicable law (namely Section 71a Asylum Procedure Act (Asylverfahrensgesetz1 ). The Federal Office appealed the Court of Appeal’s decision to the Federal Administrative Court (Bundesverwaltungsgericht) (the “Court”).  

Decision & Reasoning: 

The Court denied the appeal as inadmissible because the Federal Office failed to show that there was a substantial divergence in applicable case law (Divergenz) or the legal matter at hand was of fundamental importance (Rechtssache von grundsätzlicher Bedeutung) to be decided by the Court. The Court first dealt with the question of whether there was a substantial divergence in applicable case law (Divergenz) and the Federal Office’s respective claim that the Court of Appeal’s decision deviated from a decision by the Court dated 17 June 2014 (10 C 7.13) (“Previous Decision”). The Court argued that there was no divergence because in the case leading to the Previous Decision, the applicant had been granted refugee status in the other Member State (as opposed to the case at hand, where the Applicant had been denied refugee status and only been granted subsidiary protection in Hungary). The Court further explained that the Previous Decision did not include a general ruling that the granting of any status of protection in another Member State excludes a review on the merits of an application in Germany. The Court then briefly dismissed the Federal Office’s claim of divergence with decisions of the Higher Regional Court of Munich (Verwaltungsgerichtshof München) because these decisions dealt with cases in which the applicant requested subsidiary protection in Germany while having previously been granted subsidiary protection in another Member State. 

The Court then reviewed the Federal Office’s argument that a rejection to review the Applicant’s application for asylum was in line with Article 33 Paragraph 1, lit. a of the recast Asylum Procedures Directive. According to this provision, a Member State may, after taking into consideration any applicable Dublin provisions, dismiss an application for international protection in cases where international protection has already been granted in another Member State. The Court rejected this argument based on the transitional provision in Article 52 of the recast Directive. The Court argued that according to this provision, the Asylum Procedures Directive still applies to applications lodged before 20 July 2015. Article 25 of the Asylum Procedures Directive states that Member States may consider an application for protection as inadmissible if another Member State has granted refugee status (as opposed to another Member State granting any form of international protection as set out in Art. 33 of the recast Directive). Since the Asylum Procedures Directive, and not the International Protection Directive, was applicable to the case at hand, the Court argued that the Federal Office may not dismiss the application on the basis that Hungary had previously granted subsidiary protection. 

Outcome: 

The Court rejected the Federal Office’s request for an appeal and review of the case on the merits (Revision). 

Subsequent Proceedings : 

Administrative Court of Stuttgart (Verwaltungsgericht Stuttgart), Urteil dated 8 July 2014 – VG A 3  K 5150 /13. The Administrative Court of Stuttgart granted the Applicant judicial relief regarding the deportation order.

Higher Administrative Court of Mannheim (Verwaltungsgerichtshof Mannheim), Urteil dated 29 April 2015 – VGH A 11 S 57/15. The Higher Administrative Court of Mannheim upheld the decision from the Administrative Court of Stuttgart.

Observations/Comments: 

This case summary was written by Linklaters LLP. 

This case summary was proof read by Julia Oberndorfer, Leibniz Universität Hannover.

Case Law Cited: 

Germany - Higher Regional Court of Munich (Verwaltungsgerichtshof München), Beschluss dated 18 June 2015 – 20 B 15.300117

Germany - Higher Regional Court of Munich (Verwaltungsgerichtshof München), Beschluss dated 16 June 2015 – 20 B 15.50058

Germany - Administrative Court of Stuttgart (Verwaltungsgericht Stuttgart) of Ansbach, Urteil dated 8 July 2014 – VG A 3 11 K 5150 /13

Higher Administrative Court Baden-Wuerttemberg, 29 April 2015 – A 11 S 57/15

Federal Administrative Court (Bundesverwaltungsgericht), Urteil dated 17.06.2014– 10 C 7.13 – BVerwGE 150, 29