Germany – Administrative Court Lüneburg, 24. May 2016, 5 A 194/ 4
Keywords:
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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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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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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." |
Headnote:
Art 20 (3) of the Dublin III Regulation is no longer applicable when a minor subsequently enters another member state after the application for international protection of his/ her relative is completed.
Facts:
The applicant (born 2009) is a Somali national and entered Germany –together with his grandparents – in August 2013.
The mother of the applicant subsequently entered Germany as well and claimed asylum on 20 February 2014. She had previously been granted refugee status in Italy on 29 June 2011.
The applicant claims that he flew directly from Ethiopia to Germany. He believes that the Dublin III Regulation is not applicable in either his or his mothers´ case.
Decision & reasoning:
The Member State responsible, in accordance with the criteria set out in Art 7 (2) of the Dublin III Regulation, shall be determined on the basis of the situation at the time when the applicant first lodged his or her application for international protection with a Member State.
Contrary to the opinion of the defendant, Italy´s responsibility does not ensue from Art 20 (3) of the Dublin III Regulation. Thereafter, “for the purposes of this Regulation, the situation of a minor who is accompanying the applicant and meets the definition of family member shall be indissociable from that of his or her family member and shall be a matter for the Member State responsible for examining the application for international protection of that family member, even if the minor is not individually an applicant, provided that it is in the minor’s best interests.”
There´s no danger of separating the applicant from his mother – with due regard to Art 6 of the German Basic Law and Art 8 of the ECHR- because the mother is also entitled to a residence permit under Sections 27, 36 of the Residence Act.
Furthermore, the present case is also a special case, because the mother cannot be send back to Italy at the moment - with due regard to Art 6 of the German Basic Law and Art 8 of the ECHR – since the Italian authorities are unable to assure that the applicant´s mother (and her 7 months old daughter as well as the applicant) will be accommodated in such a way that family unity is ensured. (see Administrative Court Lüneburg, decision from 16 May 2016 – 4 A 267/14).
Outcome:
The application is admissible and well founded.
Observations/comments:
This case summary was written by Ana-Maria Bucataru, an LLM graduate in Human Rights Law at Queen Mary's Univeristy.
This case summary was proof read by Ann-Christin Bölter, an LLM graduate in Human Rights Law at Queen Mary's Univeristy.