Germany: Court rules that corona does not influence the six-month time limit in Article 29(1) Dublin III

Friday, August 28, 2020

On 28 August 2020, the Administrative Court of Greifswald ruled that the six-month time limit embedded in Article 29(1) Dublin III Regulation cannot be suspended on the basis of Article 27(4) Dublin III, if the suspension solely aims at preventing the expiration of the transfer period, and not at enabling effective legal protection for the applicant. 

The case concerns an Afghan national, who, in December 2019, saw his application for international protection rejected in Germany because he had previously unsuccessfully applied for international protection in Greece. The German authorities identified Greece as the responsible Member State and sent them a ‘take back’-request that was accepted on 28 November 2019. However, in April 2020 the German authorities suspended the execution of the transfer first due to, inter alia, the development of the corona crisis and then on the grounds of the suspensive effect of a legal remedy brought by the applicant.

In its assessment, the Administrative Court reiterates that the Dublin III Regulation aims at balancing the rapid determination of Member State responsibility with providing effective legal protection to the individuals concerned. Subsequently, it analyses the structure of the Regulation and identifies Article 27(4) as an element of the official heading ‘appeal’ that aims at supporting the main legal remedies guaranteed by Article 27(1). Hence, Article 27(4) ensures the effectiveness of Article 27(1) by providing interim measures that guarantee the non-transferability of the person until the (main) appeal has been decided.

In addition, Article 29(1)(2) Dublin III, which regulates the time limits for Dublin transfers, demonstrates that a pending appeal alone is not sufficient to hold up an administrative suspension, but that, to invoke Article 27(4) Dublin III, a specific link to the review of the transfer decision is needed and must ensure legal protection to the applicant. Indeed, Article 29 prescribes that the transfer period may be ‘exceptionally’ – in the event of imprisonment of absconding – extended. Therefore, the effectiveness of this Article would be undermined if, by means of Article 27(4) Dublin III, any obstacle that is not included in Article 29(2) could be invoked to suspend a transfer.  

Finally, the Court invokes the EC’s guidance on the implementation of the relevant EU provisions in the field of asylum and return procedures and resettlement (page 16), which confirms that the COVID-19 pandemic does not suffice to derogate from the general time limits in Article 29(2) Dublin III and that where a transfer is not carried out within the time limits, responsibility shifts to the Member State that requested the transfer. The suspension decision only refers to the ‘development of the corona crisis’ and was only intended for the duration of this crisis. Therefore, the Court adds, the specific reason for the suspension remained unclear, only citing the corona crisis as a justification without clarifying whether the concern is an entry ban in the responsible Member States or the medical situation in the receiving state. As such, the suspension decision did not reflect the applicant’s protection interest.
Based on these arguments, the Court found that the six-month transfer period had expired on 28 May 2020 and therefore annulled the State’s inadmissibility decision.

Based on an unofficial translation by the EWLU team

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