Germany - Administrative Court of Potsdam, 4 September 2015, case no. 4 L 810/15.A
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Court of Potsdam |
| Date of decision: | 04-09-2015 |
| Citation: | Decision of 04.09.2015, case no. 4 L 810/15.A |
Keywords:
| 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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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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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
An Applicant’s interest in remaining in a Member State prevails over the public’s interest in deporting the Applicant to the Member State in which the Applicant first sought asylum if there is a predominant degree of likelihood that the Applicant will be subject to inhuman or degrading treatment in the other Member State (e.g. because of significant capacity problems and a change to its asylum law).
Facts:
The Applicant is of Afghan nationality. On 19 March 2015, he applied for asylum in Germany. On 21 January 2015, prior to applying for asylum in Germany, the Applicant sought asylum in Hungary.
The German Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) (the “Federal Office”) requested Hungary and Bulgaria to take over the matter. The court did not make a statement on the reasons for request to Bulgaria.
The Hungarian immigration authorities stated in a letter dated 26 May 2015 that they would examine the Applicant’s asylum application made in Hungary. As a result, on 11 June 2015 the Federal Office declared the Applicant’s German asylum application inadmissible and ordered the deportation of the Applicant to Hungary. The Federal Office based its decision on Sections 27a and 34a of the German Asylum Procedure Act (Asylverfahrensgesetz) (the “German Asylum Procedure Act”).
The Applicant appealed the decision of the Federal Office to the Administrative Court of Potsdam.
The Applicant also filed an application to establish the suspensive effect of his appeal pursuant to Section 80 (5) of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung).
Decision & reasoning:
The Administrative Court first addressed the issue of whether the Hungarian immigration authorities were indeed to be determined responsible for examining the Applicant’s asylum application. The court stated that the jurisdiction of the Hungarian immigration authorities was questionable because the Federal Office had requested that Bulgaria take over the matter, even though, the Applicant had originally sought asylum in Hungary. The court concluded, however, that it did not have to reach a conclusion on this question as the ordered deportation to Hungary was illegal as a result of the current state of affairs in Hungary.
The principal issue examined by the Administrative Court was whether the asylum procedures in Hungary contained systemic defects/deficiencies. The court noted that it had rejected this conclusion in previous judgments, however, in the decision at hand, the court found that the asylum system in Hungary demonstrated systemic defects/deficiencies.
The Administrative Court considered the following facts determinative in reaching its conclusion:
· There are significant capacity problems in Hungary which are more pronounced than those in other European countries. The Court referenced various similar decisions made by other German administrative courts (Administrative Court of Saarland, 12.08.2015 – L 776/15; Administrative Court Kassel, 07.08.2015 – 3 L 1303/15.KS.A; Administrative Court Münster, 07.07.2015 – 2 L 858/15.A) to substantiate its view.
· On 6 July 2015, the Hungarian government resolved to amend its legislation. The amended provisions came into force on 1 August 2015. Under these amended provisions, the court stated that asylum procedures are shortened with the result that access to effective judicial protection is significantly restricted or unavailable. In addition, the amended provisions provide that asylum seekers, including women and children, who illegally enter Hungary can be imprisoned for a longer period of time than before. Furthermore, asylum seekers entering from countries which the Hungarian authorities deem to be safe third countries may now be deported without having access to the asylum procedure. According to the Hungarian authorities, Serbia, Albania, Macedonia, Bosnia and Herzegovina, Kosovo, Montenegro and Greece are “safe” third countries. As a result, the Administrative Court reasoned that if the Applicant was deported to Hungary, he would be at risk of further deportation to Greece without receiving an appropriate examination of his grounds for seeking asylum in Hungary. According to the court, this constituted an infringement of the principle of non-refoulement contained in both the Geneva Convention and the European Convention on Human Rights (the “ECHR”). The Court also cited the deep concern of the UN High Commissioner for Refugees that the amendments to the Hungarian asylum legislation allow for the deportation of asylum seekers to potentially unsafe third countries.
· Finally, the court noted that recent statements by the right-wing national government of Hungary create a climate which worsens the situation for refugees even further.
Due to these significant capacity problems and the amendment of Hungary’s asylum legislation, the court, in contrast to its previous decisions, found that a predominant degree of likelihood existed that the Applicant would be submitted to inhuman or degrading treatment if he was deported to Hungary. The court held that the Applicant’s application to establish the suspensive effect of his appeal was admissible and founded.
Outcome:
Application granted. The suspensive effect of the appeal filed against the decision of the Federal Office dated 11 June 2015 was applied.
Subsequent proceedings:
The case is on appeal before the Administrative Court of Potsdam under case no. 4 K 1553/15.A.
Observations/comments:
This case follows a long line of German judgments suspending transfers to Hungary based on recent legislative changes to their asylum system, namely:
VG Augsburg U.v. 18.8.2015 – Au 6 K 15.50155; VG Würzburg B. v. 13 08.2015 - W 7 S 15.50248; VG Düsseldorf B. v. 11.09.2015 - 8 L 2442.15.A; VG München U. v. 11.09.2015 - M_23_K_15_50045; VG Augsburg U.v. 18.8.2015 – Au 6 K 15.50155; VG Düsseldorf B. v. 20.8.2015 – 15 L 2556/15.A; VG Saarland B. v. 12.08.2015- 3 L 816.15; VG Düsseldorf B. v. 03.09.2015 - 22 L 2944.15.A; VG Düsseldorf B. v. 11.08.2015 - 22 L 2559.15.A; and VG Minden, 02.10.15, 19 L 923/15.A
This case summary was completed by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-4/11, Bundesrepublik Deutschland v Kaveh Puid |
Other sources:
Art. 9 (1) Eurodac Regulation
Art. 24 (4) Eurodac Regulation
UNHCR (UN High Commissioner for Refugees), UNHCR urges Hungary not to amend asylum system in haste, 03.07.2015, http://www.ecoi.net/local_link/307005/444377_de.html