Germany - Federal Constitutional Court, 2 May 2016, 2 BvR 273/16

Facts:

The complainant is a Syrian national. By his own account, he travelled on 26 August 2014 to the Federal Republic of Germany and requested asylum on 27 October 2014. The Federal Office for Migration and Refugees (BAMF) noted that he had already sought asylum in Bulgaria. Bulgaria rejected the take back request on the grounds that the complainant had received subsidiary protection in Germany.

The BAMF issued a decision on 21 November 2014 that the applicant was not entitled to asylum in Germany as he had already received subsidiary protection in Bulgaria and ordered his deportation to Bulgaria.

On November 30, 2015, the appellant requested the decision of 21 November 2014 be quashedHe alleged that the decision had become unlawful as current evidence suggested that the return of a person entitled to protection to Bulgaria was not possible. There was a risk that these persons would face inhuman and degrading treatment in Bulgaria including having to live on the street, having no access to medical insurance or employment and discrimination by the population.

Decision & reasoning:

The decision of the Administrative Court violated the prohibition on arbitrariness rooted in Article 3 Para 1 Basic Law. The general principle of equality pursuant to Article 3 Para 1 Basic Law demands that what is substantially equal be treated equally and what is substantially unequal be treated unequally (see FCC 1, 14 <52>;. 98, 365 <385>). 88, 87 <96>; 101, 54 FCC 88, 5 <12>.  

Not every misapplication of ordinary law, therefore, will amount to an infringement of the general principle of equality. It cannot be said to be arbitrary if the court deals comprehensively with the legal situation and the court’s opinion has some objective reasons (see FCC 87, 273 < 278 f>;. 96, 189 <203>). A judgment is, however, arbitrary and therefore contrary to Article 3 Para 1 Basic Law if it is unjustifiable from any legal point of view (see FCC 70, 93 <97>;. 96, 189 <203>).

The decision of the Administrative Court does not hold up to the scrutiny of this standard. The question whether a person with international protection status in another member state will face a risk of inhuman or degrading treatment triggering a transfer ban, requires, like a finding of systemic flaws in the asylum procedure, an overall evaluation of the available reports and statements on the current situation.  In this regard periodic and consistent reports of international non-governmental organizations are of particular importance ( see ECJ, Decision of 21 December 2011, C-411/10, C-493/10). Against this background, reports that update a previous position are particularly relevant for the determination of such defects, and should not necessarily be denied as having the quality of new evidence within the meaning of § 51 Para 1 No 2 Administrative Procedures Act. It should be noted that the question to be answered concerns core aspects of German and European constitutional law, so that it requires particularly careful examination whether new information truly remains irrelevant.

In the present case, therefore, the statement of the Foreign Office on 23 July 2015 to the Administrative Court Stuttgart and the information provided by Dr. Valeria Illareva, a Bulgarian lawyer, to the Administrative Court of Baden-Württemberg on 27 August 2015 should have undergone closer examination. This is even relevant since the UNHCR report of April 2014 anticipated thoroughly positive changes in the matter, forcing the question of whether these (merely) expected changes had occurred to be considered.

By contrast, the two reports submitted by the complainant more than a year later showed no positive changes had taken place, and that the situation of those recognised as meriting protection status had rather become even more problematic than before. In addition, specific problems of health care, access to employment and housing and general discrimination against those with protection status are apparent. Against this background, it was not justifiable in any way to simply consider the new arguments irrelevant.

Outcome:

The decision of the Administrative Court Düsseldorf is repealed and the case is referred back to the Administrative Court Düsseldorf.

Observations/comments:

This case summary was written by Avril Rushe, BPTC student at BPP University. 

This case summary was proof-read by Emma Atkinson, LPC student at BPP University. 

Other sources:

Statement of the Foreign Office to the Administrative Court of Stuttgart on23 July 2015

Disclosure by Bulgarian lawyer Dr Valeria Illareva to the Administrative Court of Baden-Württemberg on 27 August 2015

UNHCR Report dated April 2014