Germany- Higher Administrative Court of Saxony, 5. October 2015, 5 B 259/15.A

Facts:

The Applicant entered Poland from Libya, holding a valid temporary visa (until 17 March 2013). He then travelled to Germany on 24th of October 2013, where he applied for asylum on 8th of January 2014.

The Federal Office requested Poland to take the applicant back, which Poland accepted on the 20th March 2014 in accordance with Art. 12 (4) of the Dublin III Regulation.

As a result, the Applicant made a request for interim protection, which was quashed by the Administrative Court with the argument that the time limit of six months under Art. 29 (1) of the Dublin III Regulation was still ongoing according to Arts 27 (3)c subsection 2 Dublin III Regulation and Article 34 (2) subsection 2 Asylum Procedure Act and that there was no degree of likelihood that Poland´s asylum application system suffered from any systemic deficiencies.

Upon this, the applicant brought a legal action against the Federal Office on 8th of April 2014.

Decision & reasoning:

The Court found that the Federal Office had violated the rights of the applicant to have his asylum application fairly assessed, because the six-month period during which his transfer had to be carried out in accordance with Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”) had expired and it remained open whether Poland will still accept the applicant upon return.

Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State Art. 29 (2) of the Dublin III Regulation.

The Court based its argument on the decisions of the Court of Justice of the European Union   (C-394/12, Abdullahi and C-411/10, C-493/10, N. S. and others).

According to the purpose of the Dublin II and III Regulations and the requirement of rapid action (Beschleunigungsgebot), states are required to ensure effective and rapid access to asylum procedures. Therefore, the requirement of rapid action becomes imminent (BVerwG, Beschl. v. 8. Juli 2015 - 1 B 30.15 -, juris Rn. 6).

Furthermore, due to the requirement of rapid action states have to stop transfers, when the receiving Member State is no longer responsible for taking the applicant back, because only by doing so they ensure that asylum claims are not being unnecessarily delayed in case the applicant is sent back from the receiving Member State to the requesting one, in this case from Germany to Poland.

On the other hand, the applicant may be returned even after the time limit for the transfer has expired, only in case the receiving Member State gives its consent to take back the applicant and where there are no systematic deficiencies in the asylum procedure.

Whether Poland will take the applicant back remains open. However, the Court assumed that due to the high number of refugees entering the country at this moment and the financial burden on states to ensure proper conditions for refugees, it is unlikely that Poland will agree to take the applicant back. The Court also mentioned that the burden of proof lies in this case with the Federal Office.

Lastly, an applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure for an applicant in the country to which he or she would be deported cannot be ensured. In contrast, in case the Federal Office can prove that Poland is able to take back the applicant, then the court dealing with the main case may amend or rescind orders regarding the suspensive effect of requests in accordance with subsection 5 of Art. 80 of the Code of Administrative Court Procedure at any time. “Each party concerned may request an amendment or rescission because of altered circumstances or because of circumstances not asserted in the original proceedings without fault” (Article 80(7)).

Outcome:

Appeal granted and suspensive effect applied to the transfer decision.

Observations/comments:

This case summary was written by Ana-Maria Bucataru, an LLM student in Immigration Law at Queen Mary University, London.

The summary was proof read by Ann-Christin Bölter, an LLM student in Immigration Law at Queen Mary University, London.