Germany: Administrative Court of Munich finds German-Greek Administrative Agreement violates European law and orders return of applicant from Greece

Thursday, August 8, 2019

On 8 August 2019, the Administrative Court of Munich (single judge), in a summary proceeding, ordered the Federal Republic of Germany to return an asylum applicant from Greece and to grant him provisional entry to Germany.
The applicant, an Afghan national, crossed the German-Austrian border by train in May 2019. The Federal Police apprehended him during a border entry check and found EURODAC hits for Greece and Austria. The applicant was refused entry to the territory on the grounds that there were ’indications’ that Greece was responsible for the asylum application as per the Dublin Regulation 604/2013 (the Dublin Regulation). A readmission procedure was initiated pursuant to §18 (2) 2 Asylum Act (AsylG) – regarding refusal of entry decisions – and the applicant was returned to Greece on the same date. The Federal Police did not conduct a procedure according to the Dublin Regulation nor an in-depth examination of the applicant’s case or provide for a hearing.
The Federal Police sent a ‘Notification of Refusal of Entry’ to Greece pursuant to the German-Greek Administrative Agreement (the so-called ‘Seehofer Deal’), in respect of the applicant. Upon return to Greece, the applicant was arrested and detained for two-and-a-half months and the authorities in Greece refused to process his asylum application. The applicant has appealed and is awaiting a decision.  Before the Administrative Court of Munich, the Federal Police stated their actions complied with a so-called ‘Pre-Dublin procedure’ for determining the responsible Member State for conducting the actual Dublin procedure, during which it is not mandatory to follow the established procedures of the Dublin Regulation.
In assessing the case, the Court held that it was particularly unclear on which legal grounds the applicant was sent back to Greece by the Federal Police. The Court raised doubts as to the legality of the “Pre-Dublin Procedure” under EU law, particularly given that the applicant’s rights under the Dublin Regulation were not respected and that the overall objective of the Dublin Regulation had been circumvented. It additionally held that the procedural safeguards provided for under the Return Directive 2008/115/EC and the Schengen Borders Code were not also not adhered to. The decision also failed to comply with domestic law as it was carried out by the Federal Police and not the competent authority.
The Court recognised that the applicant was unable to re-launch his asylum application in Greece and was instead likely to face return to Afghanistan without an assessment of the substantive grounds for asylum. Lastly, the judge assumed that Germany had become responsible for the asylum application as no effective take back request pursuant to Article 23 (1) of the Dublin Regulation was issued and the two-month period had thus expired.
The case was litigated with the support of PRO ASYL/RSA and Equal Rights Beyond Borders in Germany. In Greece, AITIMA supported the case.

The EWLU would like to thank Meral Zeller and Belinda Bartolucci of Pro Asyl for providing us with a summary of the case. Based on an unofficial translation.

Photo: (CC), Bert Kaufmann, September 2008 / Flickr

This item was reproduced with the permission of ECRE from the ELENA Weekly 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.



Dublin Transfer