Germany – Administrative Court Magdeburg Chamber 8, 26 January 2016, 8A 108/ 16

Facts:

The applicant challenges the decision of the defendant (Federal Office for Migration and Refugees) from 14/12/2015, in which, according to § 27 a of the Asylum Act, both the asylum application was rejected as inadmissible, because of the responsibility to examine the application for asylum by Maltese authorities, as well as the deportation to Malta. The applicant refers in his claim to the systemic deficiencies in the Maltese asylum system and desires that the Federal Republic of Germany examines his asylum application (Selbsteintrittsrechts) and seeks also the annulment of the decision of the defendant from 14/12/2015.

Decision & reasoning:

The Federal Office was wrong to come to the conclusion that the application for asylum in Germany is inadmissible and was consequently also wrong to order the deportation to Malta. The claimant is therefore entitled to have his asylum application examined in the Federal Republic of Germany. The claimant has an entitlement to have his asylum application examined in Germany based on the sovereignty clause.

Despite the general responsibility of Malta pursuant to Article 27a of the Asylum Procedure Act, the applicant is entitled to the consideration and decision of his application for asylum in Germany. This is due to the so called systemic deficiencies in the Maltese asylum procedure and reception conditions, after which the applicant may suffer from inhuman or degrading treatment in the sense of article 3 ECHR  if he is deported back to Malta. (see decision from 07.01.2016 8B 107/16)

The criterion for the existence of systemic deficiencies requires at least a considerable likelihood. Hence, the presumption of systemic deficiencies requires that the asylum  procedure or the terms of reception conditions in the member state concerned are regularly so deficient that it may be presumed that there is a considerable likelihood that the person seeking asylum is at risk of suffering from inhuman or degrading treatment. (Federal Administrative Court, decision from 19.03.2014, 10 B 6.14, juris) 

Serious indications of the existence of systemic deficiencies are based on the current detention practice of Dublin returnees in Malta. (See Decision from 05. 11. 2015, 10 A 5157/ 15 juris). Indeed, the detention of a person does not violate as such article 3 ECHR. However, article 3 ECHR requires member states to make sure that the conditions of detention respect human dignity and that the nature and method of execution of the measure does not subject prisoners to more suffering and hardship than the unavoidable amount of sufferance experienced by detainees and that their health and well-being are adequately ensured taking into account the practical needs of detention. (See ECtHR Decisions from 21. 01. 2011 – 30696/ 09- para 221, and 15. 07. 2002 - 47095/99 – para 95).

Outcome:

The claim is admissible and well-founded.

Subsequent proceedings:

Similarly in this matter: decisions of the Administrative Court Magdeburg  Chamber from  25.11.2014 (5 A 118/13, 5 A 191/12 und 5 A 201/12) and from 19.10.2015 (5 A 180/15). These are followed by the proceedings in the principal action before the Court which may for further justification refer to the aforementioned decisions (§ 117 (5) of the Code of Administrative Court Procedure analogue).

Observations/comments:

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

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

Other sources:

AIDA Report Malta -  February 2015