Germany – Regensburg Administrative Court rules on absconding and time limits for Dublin transfers

Wednesday, January 9, 2019

On 9 January, the Administrative Court of Regensburg ruled on the requirements for the extension of the time limit for transfer under Article 29 (2) of the Dublin Regulation based on the person concerned absconding.

The case concerned an application to suspend the decision of the Federal Office for Migration and Refugees, ordering the return to Italy of a national of Sierra Leone following a EURODAC hit. The Court had initially rejected his request but then amended its decision due to subsequent changes in the factual and legal situation, finding that the time limit for transfer of six months had elapsed and, thus, the applicant could not be transferred to Italy.

The Court held that the time limit was not to be extended up to eighteen months in accordance with Article 29 (2) of the Dublin Regulation, as the applicant could not be deemed to have absconded at the relevant point of time, namely the date on which the Federal Office notified the Italian Ministry of the Interior. The extension of the time limit for transfer under Article 29 (2) of the Dublin Regulation required that the transferring authority established proof that the asylum seeker had indeed absconded and that such proof was missing in the present case. The Court observed that this requirement was in line with the generally established case-law, according to which the burden of proof lies with the party claiming an exception from the general rule.

Furthermore, the Court found that an asylum seeker can be deemed to have absconded only if he cannot be reached by the Federal Office and the transferring authority for an extended period of time, something to be determined according to the individual circumstances of each case. Although proof of the intent to evade the authorities is not required, the Court stressed that it was not sufficient to only take into account whether the applicant was present in the accommodation assigned to him at all times. Based on national law establishing a time frame of three days to notify the authorities of a change of residence, the Court concluded that an absence of up to three days could not be deemed as absconding.

In the Court’s view, the responsible authorities were obliged to take appropriate steps to ascertain whether an asylum seeker had absconded, if they had reasonable grounds to believe that he did, e.g. by making enquiries to the manager of the accommodation or the Social Welfare Office, or by imposing a periodic reporting duty on the person concerned. If such measures were not taken, remaining doubts regarding whether the asylum seeker had absconded or not were to be taken into account to the detriment of the authorities claiming the extension of the time limit for transfer under Article 29 (2).

Based on an unofficial translation by the ELENA Weekly Legal Update.

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. 



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