Germany - Administrative Court of Lueneburg, 16 December 2013, 6 B 64/13
Keywords:
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Temporary protection
Description
"A procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons. Note: In Latvia, the right granted to a group of persons to reside in the Republic of Latvia for a specified period of time if such persons need protection and they are or have been forced to leave the country of their citizenship or, if the persons are stateless persons, their country of former residence due to: ethnic conflict, or civil war." |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
The interest of an applicant to obtain a temporary stay from deportation to Italy for the time being predominates, if the applicant, in case of his return back to Italy, would be threatened with serious damage to his health due to inadequate accommodation opportunities there and because medical care would not be guaranteed due to a permanent overstretch of resources.
Facts:
The applicant objects against being deported to Italy. On 7 November 2013 the Republic of Italy declared its willingness to take back the applicant and to complete the procedure concerning his motion for protection.
A final review of the asylum application has not yet been completed in Italy. By a decision dated 8 November 2013 the Federal Office for Migration and Refugees rejected the asylum applicant's request as invalid and ordered his deportation to Italy. On 20 November 2013, the applicant requested a court order to put in place the suspensive effect of his main law against this deportation order, which he filed on 8 November 2013.
The applicant was diagnosed with tuberculosis of the lymph nodes in his neck and treated. The treatment is now over. Regular medical follow-ups are required in order to detect early enough whether any additional treatment is needed. The applicant was examined in Italy, admitted to a hospital and provided with medicine, but nobody has helped him properly. He had two operations in Germany.
Decision & reasoning:
The interest of an applicant to obtain a temporary stay from deportation to Italy for the time being predominates, if the applicant, in case of his return back to Italy, would be threatened with serious damage to his health due to inadequate accommodation opportunities there and because medical care would not be guaranteed due to a permanent overstretch of resources.
When making a decision whether the suspensive effect against the deportation order shall apply during the main lawsuit, the public interest in the swift enforcement of an administrative act has to be balanced against the interest of the affected person to receive preliminary legal protection.
In this respect, the restrictions that used to apply to such cases in the past, which were based on previously applicable statutory provisions under §80 and §123 of the Code of Administrative Procedure, and which did not allow for a temporary stay of a deportation to another EU member state, do no longer apply anymore.
Therefore the general principles for suspensive effects apply. If the outcome of the main legal proceeding is uncertain, after a summary review that is only possible in proceedings for temporary legal protection, because it is neither apparent that the law suit will be successful nor is it obvious that the law suit will remain unsuccessful, the outcome depends on a mere balancing of conflicting interests.
At present, the contested decision of the Federal Office dated 8 November 2013 is neither obviously legal nor obviously unlawful. The defendant also did not step into the proceeding pursuant to Article 3, paragraph 2 of the Dublin II Regulation. Because neither the questioning in preparation for the hearing in accordance with § 25 of the Asylum Protection Act on 18 September 2013, nor the hearing before the Federal Office on 31 October 2012 lead to the conclusion that the Federal Republic of Germany made the decision to use their right to conduct the Asylum, diverging from the usual procedure, as a "whole" under its own responsibility..
The questioning served only the purpose to orderly process the filed application for asylum, but it provides no reason to presume that Germany wanted to assume the case by itself Currently it is also uncertain, whether there are exceptional reasons in the case of the applicant, pursuant to which the Federal Republic of Germany is obligated to step in and assume the proceedings in accordance with Article 3, Paragraph 2 of the Dublin II Regulation.
There is no reason to fear that the asylum process and the terms of admission for the asylum applicant in Italy are fundamentally defective. It can also be presumed that the accommodation, food and medical care for asylum seekers in Italy is ensured.
However, recognized refugees could be significantly discriminated against, especially as accommodation options are not made sufficiently available. Moreover there are an increasing number of cases where, especially concerning asylum applicants who are in need of special protection, do not receive places in special facilities, but who rather during their asylum procedure have to remain in accommodation centers which do not meet their special needs.
There is no decisive evidence of any significant systematic shortcomings of the asylum process and the terms of admission in Italy. Italy complies with the minimum standards of European refugee protection - at least for healthy young men. However, whether this also applies to the applicant is currently uncertain.
Up until an actual relaxation of the accommodation situation in Italy takes place, groups of people who are in need of special protection are affected by numerous grievances and put at risk due to the inadequate accommodation capacity.
Outcome:
The application was granted. The suspensive effect of the law suit against the deportation order from the Federal Office for Migration and Refugees dated 8 November 2013 has been put in place.
Subsequent proceedings:
The main complaint procedure is pending in the administrative court of Lueneburg under the case number: 6 A 252/13.
Observations/comments:
Case law summarised as part of APAIPA Project.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP) |
| Germany - Federal Constitutional Court, 14 May 1996, 2 BvR 1938/93 |
Other sources:
UNHCR, Recommendations on important aspects of refugee protection in Italy, July 2013, S. 9 f. - UN-HCR 2013
Information from the German Foreign Ministry to the administrative court of Freiburg dated 11 July 2012
Statement from the High Commissioner for Refugees of the United Nations to the administrative court of Braunschweig dated 24 April 2012
Opinion of the refugee organization borderline-europe, Human Rights without Borders (Judith Gleitze) dated December 2012
Report from the Swiss Refugee Council dated October 2013 ("Italy: Terms of Admission, Current Situation of Asylum Seekers and Protected Persons, especially Dublin Returnees)