Germany - Administrative Court of Potsdam, 04 February 2016, case no. 6 L 87/16.A
Keywords:
| Keywords |
|
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.” |
|
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. |
|
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. |
|
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." |
|
Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
A court’s decision on a request for suspensive effect of an appeal against a deportation order does not affect the expiration of the 6-month period set out in Art. 29(2) of the Dublin III Regulation. According to German law, a deportation order ceases to be effective upon expiration of this 6-month period.
Facts:
Germany submitted a request to take back the Applicant to Italy on 16 July 2015. Italy did not reply to this request. On 31 July 2015 Italy was deemed to have accepted the request to take back. On 25 September 2015, the German Federal Office for Migration and Refugees (the “Federal Office”) issued an order for deportation of the Applicant to Italy. The deportation was to take place on 22 February 2016. In the meantime, the applicant filed an appeal to rescind the order and also filed a request to order the suspensive effect of his appeal. The request for suspensive effect was denied by decision dated 4 November 2015. The Applicant then filed a request to suspend the deportation order on 31 January 2016, claiming that the 6- month period under the Dublin III Regulation for deportation had expired on 30 January 2016 (i.e. 6 months after Italy was deemed to have accepted the request to take back).
Decision & reasoning:
The Federal Office’s deportation order ceased to be effective due to the expiration of the 6-month period set out in Art. // 29(1) of the Dublin III Regulation. The Applicant’s first request to order the suspensive effect of his appeal to rescind the deportation order (i.e. the request denied on 4 November 2015) did not have an effect on the expiration of the 6-month period. In rendering its decision, the Court dealt with the following issues:
1. The effect of court decisions on requests for suspensive effect on the 6-month period set out in Art. 29 of the Dublin III Regulation The Court first addressed the effect a court decision on a request for suspensive effect has on the 6-month period set out in Art. 29 of the Dublin III Regulation. The Court found that a court’s issuance of a decision on a request for suspensive effect has no bearing on the expiration of the 6-month period. The Court argued that another view would falsely ignore § 80 (5) of the German Code of Administrative Court Procedure (VwGO), which states that a request for suspensive effect of a filed appeal has itself no suspensive effect within the meaning of Art. 27 (3) of the Dublin III Regulation (“suspensive effect to an appeal or review”). This is because an appeal to a deportation order under German administrative law does not per se have suspensive effect. The only legal protection provided is that under § 34a (2) of the Asylum Procedure Act (AsylG), which foresees a statutory non-enforceability of administrative decisions for the duration of the summary proceedings and only for requests for suspensive effect submitted on time.
2. The effect of the expiration of the 6-month period on deportation orders
The Court then addressed the effect of the expiration of the 6- month period under German law. The Court held that the expiration of the 6-month period rendered the deportation order automatically ineffective pursuant to § 43(2) of the German Administrative Procedure Act (VwVfG) and the Court did not see the need for an explicit annulment of the Federal Office’s deportation order. According to the Court, applying this provision is in line with the objective of the Dublin III Regulation to quickly and effectively determine the responsible Member State in the interests of the involved Member States and the respective applicant.
Outcome:
Applicant succeeded in his action.
Observations/comments:
The Asylum Act was passed after this decision was rendered. According to a subsequent decision by the Federal Administrative Court, now if an applicant has filed an appeal against a transfer decision and has lodged a request for the appeal to have suspensive effect, and the 6- month period that started at the time of the acceptance of the request to take back has not expired, the time of the final decision of the appeal will be the start of the 6-month period. See the decision by the Federal Administrative Court (Bundesverwaltungsgericht), 27 April 2016, 1 C 22.15 regarding the two alternative starting points under Art. 29(1) of the Dublin III Regulation, i.e. the (deemed) acceptance by the other Member State, and the final decision or review of an appeal with suspensive effect.
This case summary was written by Linklaters LLP/
This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.