Germany – Münster Administrative Court obliged the German asylum authorities to accept a delayed take charge request from Greece

Saturday, December 22, 2018

On 22 December 2018, the Administrative Court of Münster ruled in a case concerning an interim measure brought forward by two brothers, both Syrian nationals, claiming a violation of their rights under Articles 8 and 17 (2) of the Dublin Regulation.

The older brother had been in Germany since September 2015, having been granted subsidiary protection status, while the minor arrived to Greece with his cousin in 2016 and applied for asylum there. After several family reunification requests to the Federal Office for Migration and Refugees (BAMF) were rejected, the case was brought before the administrative court.

First, the Court held that, in light of the paramount importance of the fundamental right to family unity and the best interest of the child, as reflected in Articles 8 to 10 of the Regulation, the applicants had an individual, subjective right to request that Germany be recognised as the Member State responsible for the minor’s asylum application. Such right is justiciable in accordance with Article 27 (1) of the Dublin Regulation, as well as Article 47 of the Charter of Fundamental Rights of the EU and national law, at least where a Member State wrongfully does not assume its responsibility, affecting the applicant’s right to family unity and the best interest of the child.

Secondly, the Court held that the temporary guardianship awarded to the applicant’s cousin could not be regarded as custody under Greek law, resulting in the cousin being considered as a representative of the minor in accordance with Article 6 (2) of the Regulation. Following this, the Court concluded that the young brother was an unaccompanied minor and Germany was the Member State responsible for his application, as reunification with his older brother was in the best interest of the child. Moreover, this responsibility was not affected by the delayed request, as the failure should be attributed to the Greek authorities, having wrongfully insisted on the request for family reunification to be made in writing, and to his cousin’s delay in submitting it. In this vein, the Court found that Article 21 of the Regulation not only aimed at distributing responsibility among the Member States but also at safeguarding the specific interests of asylum seekers to have their applications reviewed in due course. Thus, in the context of the importance of family unity, a delayed request cannot be in line with the overall aim of the Dublin framework, inasmuch as it renders family reunification permanently impossible.

Finally, the Court ruled that Germany was in any case responsible to examine the minor’s application for international protection under Article 17 (2) of the Dublin Regulation, as the discretion therein should be considered as a legal obligation in light of the importance of the child’s rights. The BAMF was ordered to accept the delayed take charge request.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Vinzent Vogt, Legal Coordinator at Equal Rights Athens, for bringing the case to our attention.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.   



Best interest of the child
Dublin Transfer
Request that charge be taken
Unaccompanied minor