Germany: Higher Administrative Court confirms the unlawfulness of the extension of Dublin-deadlines because of corona

Friday, September 18, 2020

On 18 September the Higher Administrative Court from Lower Saxony rejected an appeal against the judgment of an Administrative Court that had annulled the decision of the German authorities to reject an Iraqi national’s asylum application as inadmissible and order his deportation to Sweden.

The Iraqi national, had moved from Iraq to Sweden in 2015, where his asylum application was rejected. Subsequently, in 2018, he moved to Germany, where he made a new application for asylum. On 20 September 2018, the German authorities sent the Swedish authorities a take-back request, which was answered positively one week later. Consequently, the German authorities declared the applicant’s application inadmissible, ordered his transfer to Sweden and imposed a 3-month entry and residence ban from the date of the transfer. On 29 November 2018, an appeal for interim legal protection was rejected and, in 2019, the applicant absconded.
On 7 and 8 April 2020, the German authorities declared to postpone the applicant’s transfer until further notice, referring to the coronavirus pandemic and Article 27(4) of the Dublin III Regulation (Regulation 604/2013). On 22 June 2020, the German authorities restarted transfers to Sweden, triggering the applicant’s request for interim legal protection on the basis of changed circumstances. German authorities argued, inter alia, that this appeal should be rejected, as Article 27(4) of Dublin III allowed for the suspension of the enforcement of Dublin-transfers, provided that the reasons for it were objectively justifiable, non-arbitrary and not abusive. Furthermore, they argued that the CJEU had ruled that EU Member States must have a continuous period of 6 months to deal with technical problems in the implementation of transfers.

The Administrative Court allowed the appeal against the 2018 removal order, gave it suspensive effect and, subsequently, overturned the German authorities’ decision. The Court underlined that the transfer period of 18 months had expired at the time of its decision and that the original 6-month transfer period was last restarted by the judgment of 22 November 2018. Furthermore, it stated that the authorities’ suspension decision relating to the pandemic violated EU law, as the Dublin III Regulation allows for the suspension of the implementation of a transfer decision, which interrupts the transfer deadline, only in individual cases and in order to make an appeal effective. Therefore, the Court concluded that a suspension could not interrupt the transfer period when the suspension only served to react to developments unrelated to the concrete facts and proceedings. 

The Higher Administrative Court rejected the government’s appeal to this judgment. It rejected, inter alia, the authorities’ argument that, in the absence of a specific provision on the de facto general suspension of the Dublin transfer procedure, Dublin III should be interpreted as to not impeding Member States, under pandemic circumstances, from suspending the implementation of the transfers. In turn, the Court underlined that the expiry of the Dublin time limits in itself is sufficient for Member States to change responsibility, because Dublin III does not factor in Member State errors in the assessment of responsibility allocation on the basis of expired time limits, and concluded that the time limits of Article 29(1) should be interpreted strictly. It concluded that Article 27(4) requires a link between the suspension of the transfer and the effectiveness of an appeal and clarified that the suspension of a transfer decision ‘until further notice’ is not contrary to EU or national law per se.

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.                               

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