Germany - Administrative Court of Trier, 27 March 2019, 7 L 1027/19.TR
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
There is a case of urgent necessity concerning interim measures according to § 123 VwGO obliging a Member State to accept a take charge request regarding the asylum applications of family members of a person entitled to subsidiary protection in that state when the decision on an asylum application of these family members is imminent in the requesting state.
Facts:
A father from Syria that was granted protection in Germany applied for family reunification regarding his three children and his wife that were in Greece at that time.
The Greek Dublin unit had requested the Federal Republic of Germany to take charge of the asylum applications within three months after his children and his wife applied for asylum in Greece. Within three weeks after the first refusal from Germany, Greece requested a new examination which was refused by Germany again. The father then submitted an application for interim measures concerning the responsibility for German authorities in a German Court.
Decision & reasoning:
The wife and children are authorized to file an application in analogy to § 42 para. 2 VwGO. All of them have a subjective right to be transferred to the member state responsible for the examination of their asylum application due to the best interest of the children and due to the high importance of family unity that can be drawn from art. 8 and art 17 Dublin Regulation.
A legitimate interest in legal protection exists for all of them. Art. 27 Dublin Regulation only stipulates legal remedies against transfer decisions but taking into account Art. 47 ECHR a case like should also enjoy a right to an effective remedy against the decision.
Such remedy is not given in Greece since Greek Courts cannot oblige German institutions like the BAMF. Additionally, Art. 27 Dublin regulation does not preclude a nationally stipulated legal protection that exceeds the one regulated in Art. 27 Dublin regulation.
An interim measure according to § 123 VwGO is granted, when there is an urgent necessity to do so and if the applicant has a right to it.
Decisions in the main proceedings can be pre-empted if otherwise there would be unreasonable disadvantages that cannot be reverted by a decision in the main proceedings. Furthermore, a success for the applicant in the main proceedings must be probable.
Germany is responsible for the examination of the children's asylum applications according to Art. 9 Dublin regulation. Under that provision a Member State in which an applicants’ family member was granted subsidiary protection is responsible for the asylum application. Precondition is, that the wish to be transferred was submitted in written form. According to Art. 2 lit. g Dublin regulation children are family members of their parents. Also, a written application was filed by the father as well as the children.
Even if one does not consider the wife as family member pursuant to Art. 2 lit. g Dublin regulation, there is a responsibility in the present case resulting from Art. 11 lit. a Dublin regulation.
There was no transfer of responsibility to Greece in accordance with Art. 21 para. 2 and 20 para. 2 Dublin regulation that stipulates a deadline for the request that charge be taken by another Member State. Greece filed such request within three months.
Also, the deadline to file a new request within three weeks has been met by the Greek Dublin-Unit. Consequently, there is no transfer of responsibility according to Art. 5 para. 2 of the Implementing Regulation 2003/1560/EC.
Moreover, there is an urgent necessity for an interim measure. The decision on the asylum application in Greece is imminent due to the refusals of Germany to take responsibility for examining those applications. As soon as there is a decision by Greek authorities, the children as well as the wife don't fall under the Dublin regulation anymore. A family reunification on the basis of the Dublin regulation would not be possible anymore. This would be unreasonable and therefore the application for an interim measure is granted.
Outcome:
Application granted.
Observations/comments:
In light of the deadline stipulated in Art. 5 para. 2 EC regulation 2003/1560/EC the case that was ruled in VG (Administrative Court) Berlin, decision, 15. March 2019 — 23 L 706.18 A was way more problematic. The deadline was not met and still there was responsibility of Germany due to humanitarian reasons according to Art. 17 para. 2 Dublin regulation
This case summary was written by Michael Spath, law graduate of the University of Cologne
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany: § 42 para. 2 |
| § 52 no. 2 |
| no.3 |
| § 123 VwGO (Code of Administrative Procedure) |
Cited Cases:
| Cited Cases |
| CJEU - C‑47/17 and C‑48/17, X & X |
Other sources:
Domestic Case Law Cited
- Germany - VG (Administrative Court), Neustadt an der Weinstraße, decision, 26 February 2019 — 2 L 181/19.NW
- Germany - VG (Administrative Court) Münster, decision, 20 December 2018 — 2 L 989/18
- Germany - BVerwG (Federal Administrative Court), decision, 27 June 1984
- Germany - VG (Administrative Court) Berlin, decision, 15. March 2019 — 23 L 706.18 A