Germany – Federal Constitutional Court, 29 August 2017, 2 BvR 863/17

Facts:

The complainants, a mother and her four children, aged 17, 11, 9 and 5 years, all of Syrian nationality, had fled Syria due to the civil war. They stayed for some time in Bulgaria together with the husband and father of the four children.

After having entered the Federal Republic of Germany in September 2016, the complainants applied for international protection in Germany on 17 October 2016. Upon request, the Bulgarian authorities informed the Federal Office for Migration and Refugees (Federal Office) that the applicants had already been granted international protection in Bulgaria.
Consequently, the Federal Office rejected their applications as inadmissible and ordered their deportation to Bulgaria as it found that there was no prohibition of deportation.

The Federal Office argued that the applicants were, contrary to the assessment of Pro Asyl, not at a risk of a violation of their rights under the ECHR, in particular not of an inhuman or degrading treatment. According to the Federal Office, beneficiaries of international protection in Bulgaria had access to housing during winter, a right to family allowances as well as to a guaranteed minimum income for families in need, statutory health insurance and assistance offered specifically to refugees and migrants by the Bulgarian Red Cross and Caritas. In theory, beneficiaries also had access to the labour market, social benefits, health care and legal aid, which in practice, however, were difficult to realise. In this regard, it also had to be taken into account that Bulgaria – contrary to Germany – did not have a differentiated social system but that being granted social benefits depended on the autonomous actions of the individual.

The complainants lodged an appeal against this decision of the Federal Office with the Administrative Court Minden and filed a request for their appeal to have suspensory effect.
On the one hand they argued, based on information received from a number of NGOs, the Federal Foreign Office as well as the Commissioner for Human Rights of the Council of Europe, that beneficiaries of international protection in Bulgaria were in practice refused access to social benefits. All formally existing benefits depended on having an identity document which was only issued to registered residents. Due to the lack of accessible housing, beneficiaries of international protection were almost always homeless. Furthermore, the number of racist acts against refugees has been increasing. Partly, these acts were committed by the authorities or at least tolerated by them. As a result, numerous administrative courts refrained from ordering deportations to Bulgaria. On the other hand, they argued that the decision of the Federal Office was in violation of the Tarakhel judgement of the European Court of Human Rights (ECtHR) as no measures have been taken to secure appropriate accommodation for the four children.

The Administrative Court dismissed the appeal of the complainants with its decision of 13 March 2017. It held that, in line with the jurisprudence of other chambers of the court, the difficult situation in Bulgaria for beneficiaries of international protection did not amount to inhuman or degrading treatment. In this regard, the court referred to another decision of the Court concerning two Syrian nationals who were in Bulgaria for several months, in which the court had found that there was no prohibition of deportation. In the opinion of the Court, more recent reports did constitute sufficient grounds to defer from this jurisprudence despite the continuing difficulties to establish an integration programme and to put such programme into practice.

On 7 April 2017, the applicants lodged a complaint against the decision of the Administrative Court claiming a violation of their right to be heard. They claimed that the Court did not evaluate the reports of the NGOs correctly or rather did not take them into account. Furthermore, the Court did not consider the fact that the applicants are a mother and her four minor children who could only be deported if appropriate accommodation was guaranteed. Additionally, the Court did neither take into account that the mother had presented a preliminary doctor’s letter certifying a suspected coronary heart disease nor that she stated that she and her husband had separated and he had moved back to Syria.

The Administrative Court rejected the complaint with its decision of 20 April 2017 based on the argument that it had considered the issues put forward by the complainants but simply came to a different legal conclusion.

Simultaneously, the applicants had lodged a constitutional complaint with the Federal Constitutional Court on 13 April 2017 claiming a violation of their rights under Art. 1 (1) read in conjunction with Art. 2 (1), Art. 3, Art. 6, Art. 16a, Art. 19 (4), Art. 20, Art. 101 (1) sentence 2 and Art. 103 (1) of the Basic Law.

Decision & reasoning:

The Constitutional Court granted the constitutional complaint as it was admissible and manifestly well-founded.

Firstly, the Court held that the complaint was not inadmissible due to the fact that the applicant lodged the complaint claiming a violation of their right to be heard after the time limit of two weeks set forth by section 152a (2) of the Administrative Court Act had expired. Generally, the prerequisite of exhausting all legal remedies within the meaning of section 90 (2) sentence 1 of the Federal Constitutional Court Act also required that time limits set forth by the relevant procedural laws were met. However, wherever a court had taken a decision on the merits of the case, the fact that time limits had expired could not lead to the inadmissibility of a constitutional complaint.

Secondly, the Court found that there was a violation of the complaints’ right to be heard under Art. 103 (1) of the Basic Law. The right to be heard entailed the obligation of the courts to take note of the arguments put forward by the parties and to take these arguments into consideration when taking their decision. However, this did not require the courts to explicitly address every single argument put forward by the parties in the grounds of the decision as the Constitutional Courts generally assumed that the courts complied with their obligation. Consequently, a violation of Art. 103 (1) of the Basic Law required that in the individual case there were specific circumstances clearly showing that the court did not take note of or take into consideration facts put forward by the parties. This is the case, where the court did not refer to an essential issue raised by the facts put forward by a party in the grounds of the decision unless these issues were completely irrelevant to the legal opinion of the court or the argument was manifestly unsubstantiated.

According to these criteria, the two decisions of the Administrative Court infringed the complainants’ right to be heard under Art. 103 (1) of the Basic Law. One of their core arguments was that they were a single mother and her four minor children facing deportation to a country where beneficiaries of international protection had to live under difficult conditions. This issue was of key importance to the legal evaluation. Independently of the question, whether deportations to Bulgaria were, in light of the current conditions, generally permissible, the provisions of Art. 21 et seqq. of the Reception Conditions Directive clearly stipulated that the concerns of families with children had to be given particular consideration.

The Administrative Court did not consider this key issue in its two decisions. The decision cited by the Court did not concern a single mother and her children. Furthermore, when considering the specific facts of case, the Court only referred to the illness of the mother. However, it would have been clearly necessary to specify the conditions under which a single mother with four children, the youngest of which being only four years old, could be expected to live on the streets in an environment hostile to refugees. In this regard, the general expectation of the Administrative Court that the family could potentially find a suitable accommodation after some time, based only on isolated cases of refugees finding accommodation, was insufficient. The principles laid down in the decision of the Constitutional Court of 17 September 2014 (2 BvR 732/12, para. 10 et seqq.) as well as in the Tarakhel judgement of the ECtHR, which concerned the return of two parents and their children, applied all the more to a single mother and her children. Consequently, the Administrative Court was required to specifically set out why it assumed that the family would be guaranteed suitable accommodation that excluded the possibility of health risks and met the needs of a family with children.

Furthermore, it remained unclear why, in the opinion of the Administrative Court, the mother was to be regarded as a person returnable to Bulgaria. The decision cited by the Court stated that individuals could only be returned to Bulgaria if they could be assumed to be fully capable of “muddling through”. Without any further justification it is not plausible how this should apply to a mother which in a foreign environment had to take care of four children.

Finally, the Constitutional Court held that in light of the violation of Art. 103 (1) of the Basic Law, for the moment there was no need to decide on the further violations of fundamental rights claimed by the complainants as the Administrative Court might reach a different conclusion taking into account their arguments.

Outcome:

The Federal Constitutional Court annulled the contested decisions of the Administrative Court Minden due to a violation of Art. 103 (1) of the Basic Law and referred the matters back to the Administrative Court for new decisions to be issued.

Subsequent proceedings:

This decision has been followed by similar decisions, namely from the Social Court of Lüneburg, 12.09.2017 - S 26 AY 35/17 ER, who found that the return of a family with small children with subsidiary protection to Bulgaria would lead to an Article 3 ECHR violation on grounds that the family would be homeless upon return and OVG Lüneburg 10th Senate, 29.01.2018, 10 LB 82/17, who found it to be incompatible with Article 3 ECHR if an asylum seeker, completely depenedent on State support finds himself in an emergency situation and is subject to state indifference. According to the Court, such a situation of deficiency, which the Bulgarian state has not rectified with appropriate measures, threatens recognised beneficiaries of protection when returning to Bulgaria. The decision from 29 January 2018 concerned a single adult male. 

Observations/comments:

This case summary was written by Ann-Christin Bolter, an LLM graduate in Human Rights Law at Queen Mary Univeristy, London. 

Other sources:

Burkiczak/Henke, BVerfGG (Federal Consitutional Court Act), § 90, para. 169