Germany – Administrative Court Regensburg, Order of 9 January 2019 – RN 6 S 18.50495

Facts:

The applicant is a citizen of Sierra Leone and arrived in Germany on 2.2.2017. In his formal interview on 13 February 2017 the applicant stated that he had arrived in Italy via Libya. A EURODAC match was found for Italy. Then, on 5 April 2017, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge - hereinafter referred to as the Federal Office) submitted a request for transfer to the Italian authorities. Because of a HIV-related illness of the applicant, determinations regarding the admissibility of a deportation to Italy were made but the applicant's asylum application was rejected as inadmissible on 12 October 2017 and his transfer to Italy was ordered. The decision was served on 18 October 2017. An application for interim relief brought against this transfer was rejected by resolution of 7 December 2017.

In a letter dated 4 May 2018, the Federal Office informed the Italian Ministry of the Interior that the transfer period would be extended until 7 June 2019, because the applicant absconded. According to the police inspectorate V, a return transfer had failed on 23 April 2018 because the applicant had not been found in his accommodation at 7.30 a.m. on the same day. The applicant had also not been found in his accommodation on 3 May 2018. According to the persons present there, he was not at the accommodation very often. On 6 May 2018, the District Office confirmed that he had not been at the accommodation for about two weeks and that neither the police inspectors nor the District Office had been able to find him on 20 April 2018.

On 13 July 2018, the applicant now applied for interim relief, amending this decision. The applicant argued that the transfer deadline had expired on 7 June 2018 in accordance with Article 29 para. 1 Dublin III Regulation, as deportation had been possible since the decision of 7 December 2017 and the applicant had not absconded. 

Decision & reasoning:

The Regensburg Administrative Court solely dealt with the question whether the applicant had "absconded" pursuant to Art. 29 para. 2 sentence 2 Dublin III Regulation and whether, as a result, the six-month transfer period starting on the date of the decision of 7 December 2017 was replaced by an eighteen-month period. The court denied this and, with regard to the controversial definition of "abscond", agreed with the reasoning of the Administrative Court of Baden-Württemberg (order for reference to the ECJ of 15 March 2017 - A 11 S 2151/16 - recital 20) that a "withdrawal" by escape must be established. In this context, it is disputed whether the term "abscond" in Art. 29 para. 2 Dublin III Regulation contains an element of planning. In this case, absconding does not already apply if the person concerned is simply not present. However, the court found that a comparative legal interpretation of the French, English and German versions of the regulation did not necessarily lead to this conclusion. Nor could such a requirement be deduced from the genesis of the norm. As to the purpose of the regulation, it was stated that it was not a matter of sanctioning the conduct of the person concerned but of ensuring the "effective functioning" of the Dublin system. This purpose would be endangered if the transfers did not take place in a timely manner. There would also be difficulties of proof, if it had to be proved to the persons concerned that they had left their accommodation in order to avoid the transfer. For these reasons, the court found that an element of planning was not required.

According to the findings of the court, it is necessary that the asylum applicant was not available to the relevant authorities for a longer period of time. In order to determine whether a longer period of time had passed, the relevant circumstances of the individual case had to be taken into account. The court stated that the legislature considered at least three days to be too short to consider absconding drawing a conclusion from the three days that activate the obligation to report a change of residence pursuant to Section 50 para. 4 of the Residence Act (Aufenthaltsgesetz – AufenthG). However, the court was able to leave the question of the exact duration open, because:

It has not been proven that the applicant was not available to the relevant authorities for a longer period of time. The authority had not made sufficient observations about why the applicant had not been found during the attempt to deport him on 23 April 2018. It was also not evident on which facts the findings in the District Office's communication of 6th May 2018, that the applicant had not been in the accommodation for two weeks, were based. If there is a well-founded suspicion that an asylum applicant absconded, corresponding findings must be made. If no measures are taken, doubts as to the absconding of an asylum applicant must remain to the detriment of the Federal Office which has relied on the extension of the time limit pursuant to Art. 29 para. 2 sentence 2 Dublin III Regulation.

Outcome:

Application granted; amendment of the decision of 7 December 2107; interim relief was granted.

Observations/comments:

On 19 March 2019, the CJEU issued a judgment in the case C-163/17. In its judgment, the Court deals with numerous other legal issues of current relevance. However, it did not comment on how long the person seeking asylum must have left his home without being notified. General attorney Wathelet used the term "longer period". This term is not used in the decision of the European Court of Justice.

This summary was written by Andreas Janßen stud. iur. Law at the University of Cologne.

Other sources:

Domestic Case Law Cited

VG Regensburg, B. v. 7.12.2017 Az. RN6S1752188 RN 6 S 17.52188;

VG Bayreuth, Urt. v. 23.10.2017 Az. B 3 K 17.50068;

VGH Baden-Württemberg, B. v. 15.3.2017 - A 11 S 2151/16;

BayVGH, B. v. 17.8.2018