Germany: Administrative Court München, 9. May 2019, VG M 5 E 19.50027

Facts:

The applicant, a Syrian national, was identified by the German police of travelling by train from Austria to Germany with forged Italian identification documents. During his interrogation, the applicant reported that he spent two months in Greece and went to Germany via Italy. The reason why he travelled to Germany was that his sister lives in Germany and he wanted to seek asylum there. A EURODAC search showed that he had already asked for asylum in Greece five months prior to his arrival in Germany. Based on EU and domestic legislation, the German authorities issued a notification to the applicant for a refusal of entry to Germany. The applicant had been referred to Greek authorities for his return.

Due to a failed return of the applicant by plane, a German district court ordered preliminary detention of the applicant. After three days of detention, the applicant got released and deported to Greece. The applicant lodged a complaint before the Administrative Court München that his entry ban to Germany is unlawful and that he is entitled to seek asylum in Germany. Moreover, the applicant claimed that his deportation to Greece violates Article 3 ECHR regarding his status as a vulnerable person which precludes his deportation.

Decision & reasoning:

The Court held that Greece and not Germany is the responsible state to examine the applicant’s claim for international protection in accordance to EU law and the person’s irregular entry to Greece. In doing so, the Court refers on EU legislation and on the fact that the applicant irregularly entered Greece. Furthermore, whether there is a dependency on the applicant’s sister regarding his mental illness or not is a matter to be decided by Greek authorities. Moreover, it does not entitle the applicant to claim for entry or application for international protection in Germany. Also, EU law does not entitle someone a right to choose in which country his application for international protection will be examined.

On the question of Article 3 ECHR risks, the Court considered an email exchange between the German police and Greek authorities to be a sufficient assurance by Greek authorities that they will provide appropriate arrangements for the applicant’s return. Furthermore, the Court rejects the applicant’s claim of systemic flaws in the asylum procedure and reception conditions in Greece. The threshold for systemic flaws is high; they occur in situations in which the asylum procedure or reception conditions are deficient in a way that is very likely that the applicant in the specific case will face an inhumane or degrading treatment. Moreover, the living conditions after the asylum procedure have to place the applicant in a situation of extreme material hardship to be considered as an inhuman or degrading treatment. However, the Court finds that the applicant is not facing inhuman and degrading treatment in Greece and that the applicant will not face such a treatment in the future. Here, the Court relies on the general recommendation by the EU Commission regarding transfers to Greece which are reviewed and updated, and refute systemic flaws that reach the above-mentioned threshold. Moreover, the Court refers on the applicant’s own statement that he received accommodation in the reception centre in Athens, as well as access to medical treatment and psychological care after his deportation. Furthermore, the Court holds that the applicant did not give credible evidence that all clinics in Greece show inhuman circumstances and points out that outpatient psychiatric treatment, which the applicant seeks, can also not be guaranteed in Germany.

Regarding the applicant’s alleged status of a vulnerable person, the Court argues that the applicant did not report being a victim of torture and did not indicate a need for protection as a vulnerable person during his interrogation by the German police, nor in his hearing before the administrative court. Therefore, the Court finds that the applicant did not sufficiently provide credible evidence of his illness which might interfere with his deportation according to domestic law. However, even if the applicant would have provided such evidence, the Court argues that neither Article 3 ECHR nor Article 4 of the Charter of the Fundamental Rights of the EU respectively grant a right to remain in a Member State for the purpose of benefiting from medical, social or other support.

Outcome:

Appeal denied