Germany - Bavarian Administrative Court (Munich), 7 January 2015, M 11 S 14.50682
| Country of Decision: | Germany |
| Country of applicant: | Afghanistan |
| Court name: | Bavarian Administrative Court (Munich) |
| Date of decision: | 07-01-2015 |
| Citation: | Decision of 07.01.2015 - M 11 S 14.50682 |
Keywords:
| 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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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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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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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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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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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:
Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.
Facts:
The Applicants have, according to their own statement, Afghan nationality and had entered Germany and applied for asylum (the “German Application”) on 16 August 2014 after transiting through Hungary. While in Hungary, the Applicants also submitted an application for asylum (the “Hungarian Application”). One of the Applicants is affected by depression while the other is blind and severely disabled.
On 8 October 2014, the competent Hungarian body agreed to a request by the German Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) (“Federal Office”) to receive the applicants in Hungary. As a result, the Federal Office declared the Applicants’ German asylum application inadmissible in November 2014 and ordered the deportation of the Applicants.
The Federal Office’s decision was based on §27a of the Asylum Procedure Act which the Federal Office interpreted as making the German Application inadmissible because the prior Hungarian Application made Hungary the competent country for this procedure according to art. 18 (1) of the Dublin III Regulation. The Federal Office also based its decision on the fact that exceptional humanitarian reasons in the shape of “systemic flaws” in the Hungarian system which would entitle Germany to exercise the examination of an application pursuant to art. 17 (1) Dublin III Regulation, were not apparent. Furthermore, the continuation of medical treatment for the Applicants was assumed to be possible in Hungary.
The applicants filed a suit against the Federal Office’s decision on 17 November 2014 citing the European Court of Human Rights (ECtHR) decision in Tarakhel v Switzerland. In this decision the Court stated that the material issue was not whether “systemic flaws” were present but rather whether there is a higher need for protection due to the presence of children and the danger of destroying family unity by ordering the transfer.
The Applicants applied for a declaration of the suspensory effect of their suit from 17 November 2014 (§ 80 V Code of Administrative Court Procedure).
Decision & reasoning:
The administrative court declared the application of interim measures (i.e. declaring the suspensory effect of the filed suit) admissible and founded, reasoning that, due to public reports regarding inhuman treatment and poor reception conditions in the first country of asylum, it may not be possible to effect a transfer in compliance with Dublin II. In such circumstances, the Applicants must have the benefit of doubt and their private concerns outweigh the interest of immediate enforcement of the ordered transfer.
The principal issue for the Court was whether the Applicants could be legally transferred back to Hungary in accordance with the Dublin II Regulation. The Court initially summarized the law regarding the transfer of the Applicants back to Hungary, the first country of asylum. It stated that, according to §27a Asylum Procedure Act, an application for asylum in Germany is inadmissible if another state is, by European law or international treaty, responsible for the implementation of the asylum procedure. Under §34a I 1 Asylum Procedure Act, transfer to the competent country can be ordered as soon as it is certain that the transfer can be carried out. In this case, the Court stated that according to art. 13 (1) Dublin III Regulation, Hungary, which agreed to receive the Applicants, would be considered responsible as the first country of asylum.
However, the Court referred to the Abdullahi judgment of the Court of Justice of the European Union, which held that an asylum seeker may avoid transfer if they can assert that there are systemic flaws in the first country of asylum’s asylum procedure and the reception conditions in such country cause serious apprehension of an actual danger of inhuman or degrading treatment. The applicant, however, cannot request a comprehensive review of the competence of the asylum procedure of the member state. The Court further cited the N.S and M.E CJEU judgment which interpreted Art. 4 of the ChFREU as preventing a member state from returning an asylum seeker to the first country of asylum pursuant to the Dublin II Regulation if the transferring country cannot be unaware that “systemic flaws” exist in the asylum procedure in the first country of asylum.
Based on the facts of the case, the Court stated that there was a question over the existence of systemic flaws in the asylum procedures in Hungary and of the legality of a transfer in accordance with art. 4 of the Charter (art. 3 ECHR). The Court noted that other German administrative courts had disagreed over this question. While a few years ago systemic flaws in the procedure in Hungary were denied, a 2013 change in Hungarian law allowing for the imprisonment of asylum seekers provided new insight into the issue. According to the Court, reports by the UNHCR, ECRE, and the Hungarian Helsinki Committee consider the legal grounds for imprisonment under the law too wide. The Court also cited a report by Pro Asyl, which concluded that the increased risk of systematic defects in reception conditions in Hungary, renders Hungary an unsafe place for asylum seekers as well as reports concerning unhygienic conditions, low levels of medical care as well as the detention of vulnerable persons. The Court considered this fact directly relevant to the Applicants in light of their own disabilities.
Based on the varying public reports on conditions in Hungary, the Court reasoned that a decision regarding the German Application could not be decided and therefore the benefit of doubt had to be given to the Applicants because there were credible and significant reasons which indicated the illegality of the ordered transfer.
The Court reserved giving an extensive examination of these issues, leaving it for consideration in the principal proceedings relating to the applicant’s German asylum application.
Outcome:
Application of the suspensory effect granted.
Observations/comments:
This case summary was completed by Linklaters LLP.