Germany – Bavarian Administrative Court, 12 CS 16.1550, 16.08.2016

Facts:

The parties argue about the (provisional) caretaking of the claimant as an unaccompanied refugee minor by the regional youth welfare office in the district of the defendant in Dachau, Germany. He is an Afghan national whose request to be taken care of was denied first by the youth welfare office and later by the administrative court in Munich because of doubts about his age, interpreted by means of his general outer appearance. In later interviews which were conducted by the youth welfare office they came to the conclusion that he was 19 years old and therefore not eligible for their service.

Decision & reasoning:

The court grants the claimant’s request for being taken care of by the local youth welfare office because of his minor status. The administrative court of Munich’s decision not to grant him minor status is being overruled.

·         The court holds that unaccompanied refugee children that travel to Germany have to be taken care of by the state, regardless of their refugee status (§ 42 Abs. 1 Satz 1 Nr. 3, §42 a Abs. 1 Satz 1 SGB VIII).

·         The procedure of determination of a minor status is standardised in § 42 f Abs. 1 und 2 SGB VIII.

1. First the age is to be determined by examining the documents of identification. (§ 42f Abs. 1 SGB VIII)
2. If they are missing, the self-assessment of the person is to be considered. (see OVG Bremen, decision from 18.11.15 2 B 221/15, 2 PA 223/15)
3. If the testimony gives a reason of doubt, a qualified inspection must be done. (§ 42f Abs. 1 SGB VIII)
4. If in the end the doubts still exist, a medical examination must be carried out. (§ 42f Abs. 2 SGB VIII)

The result of the age assessment is not a pre-condition for a (provisionally) taking care of the child, but more it is the assignment of the caretaking itself, which means if the age is uncertain, the person has to be taken care of.

The court later clarifies how the different steps have to be interpreted and carried out.

To B): When the applicant is from countries of the southern hemisphere contradictions in the applicant’s testimony as to his age are often possible but cannot be attached much importance to. Often in these countries the date of birth is not considered as that important, there are no reliable registers of births. A contradictory statement simply raises a doubt about the applicant’s ability to assess his age, but not his age itself. If the child states that he/she is under 18, the case is to be examined with great care.

To C): A “qualified inspection” consists of the examination of the outer appearance and an interview of the child to give him/her a chance to explain any given contradictions in his prior statements. At the end the general impression is the determined factor. The inspection has to be carried out by at least two members of the staff of the youth welfare office.

The court gives very little options of when the qualified inspection is not doubtful. The assessment of the existence of doubts lies within the control of the administrative courts. The court states that doubts in the process of the qualified inspection always exist when it cannot be denied with absolute certainty that a medical examination will not state that concerned person might be underage. If even medical reports suffer from uncertainties determining age, then an inspection carried out by workers of a youth welfare office has to be considered as even more uncertain. The only situation in which the inspection can be viewed as certain is when it approves the age of the child.

To D) An exact determination of age is never possible, even by medical reports, which is why the court states that a “grey-area” of one to two years on top of the determined age by doctors has to be taken into consideration. In addition to that, the court allows two to three years on top of this grey area to be considered while determining one’s age.

Outcome:

Appeal granted.

Observations/comments:

This case summary was written by Shaghayegh Kazemloo.

Other sources:

·         Comment: Wiesner, SGB VIII, 5th edition, 2015 – appendix: www.sgb-wiesner.de

·         Comment: Kepert in: Kunkel/Kepert/Pattar, SGB VIII, 6th edition - § 42f Rn. 5

·         Comment: Kirchhoff in: jurisPK, SGB VIII, § 42f Rn. 20

·         Comment: Winkler in: BeckOK Sozialrecht, § 42f SGB VIII, Rn. 9

·         Comment: Schmidt-Aßmann in: Maunz/Dürig GG, Art 19 p. 4 Rn. 185 ff., 191ff., 195, July 2014

·         Comment: Sachs in: Stelkens/Bonk/Sachs, VwVfG, § 40 Rn. 160ff., 177 ff., 195, 204 ff., 211, 8th edition 2014

·         Comment: Kirchhoff in: jurisPR – SozR 2/2016 annotation 1 p. 6

·         Trenzcek in: Münder/Meynsen/Trenzcek, Frankfurter Kommentar SGB VIII, 7th edition 2013, § 42 Rn. 22

·         Handlungsempfehlungen zum Umgang mit unbegleiteten minderjährigen Flüchtlingen – 116. Arbeitstagung der Bundesarbeitsgemeinschaft der Landesjugendämter (Recommendations for the handling of unaccompanied minor refugees - 116th working day of the Federal Labor Office of the National Youth Offices)

·         BT-Drs. 18/6392, p. 20