Germany: Courts annul Dublin transfers to Hungary

Friday, September 4, 2015
VG Frankfurt 3 L 169/15.A, 7 August 2015; VG Munich M 22 S 15.50169, 4 August 2015;VG Cologne 20 L 1735/15.A 4 August 2015, VG Cologne 3 K 2005/15.A, 30 July 2015; VG Hannover 6 B 3050/15, 27 July 2015; VG Kassel 6 L 117/2015, 24 July 2015; VG Potsdam 6 L 356/15.A, 20 July 2015; VG Cottbus 5 L 352/15.A, 17 July 2015
In a number of first instance decisions over the past few months, German courts have prevented transfers under the Dublin III Regulation to Hungary, on the basis of deficiencies in the asylum procedure and reception conditions. This led to a real risk of inhuman and degrading treatment if asylum seekers were returned there.
 These decisions raise a number of concerns about the Hungarian asylum system with German courts noting the following:
  • Indications of serious problems with reception capacity in Hungary, including communications from the Hungary Dublin unit informing Member States that capacity had been exhausted  
  • The recent changes to the asylum procedure, in particular in relation to the safe third countries. These changes could lead to deportation to Serbia in particular, where there is a risk of onward refoulement.
  • The systematic and arbitrary detention of asylum seekers including Dublin returnees, without regard to the principle of proportionality. Vulnerable people including victims of torture and families are also detained as there is no individualised assessment. There is no effective legal protection against the imposition of detention.  
  • The conditions of detention do not comply with minimum standards of human care and treatment or hygiene standards, with reports of brutal assaults and lack of medical care. The use of handcuffs and leashes to take detainees to external appointments is inhuman and degrading in itself.
  • The inability to access an effective asylum procedure because if the applicant has withdrawn his application tacitly or in writing, a re-application is considered to be inadmissible with an appeal against this having no suspensive effect. In addition, there is the possibility of a negative decision on the application for asylum being made in absentia requiring a Dublin returnee to submit new facts and evidence. 
  • The xenophobic rhetoric on asylum seekers from members of the Hungarian government could be seen as evidence of a lack of willingness to ensure relevant legal standards for their protection
In these judgments, the German courts have closely examined recent developments in Hungary, referring to objective reports, as well as ministerial statements and contemporaneous press reports.
For more information on recent changes to Hungary’s asylum law and procedures, please see the Hungarian Helsinki Committee’s information note (in English).
The ELENA Weekly Legal Update would like to thank Klaus Walliczek for his assistance with this article.

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Dublin Transfer
Inhuman or degrading treatment or punishment
Material reception conditions
Reception conditions