Germany - Administrative Court Minden, 22 December 2016, 10 K 5476/16.A

Facts:

The plaintiff is an Eritrean national. He applied for asylum at the government of Upper Bavaria on 14 September 2015. On 22 July 2016, the applicant filed a formal asylum claim at the Federal Office for Migration and Refugees.

According to his claims, the plaintiff arrived on  4 September 2015 in Italy, from where he travelled further to Germany and arrived on 12 September 2015. An inquiry to the Eurodac database, carried out on 19 August 2016, revealed that his fingerprints were taken in Italy, but he did not apply for asylum there. 

On the same day, the Federal Office submitted a request to the Italian authorities to take charge of the applicant under the Dublin Regulation, but this request was not answered.

The plaintiff filed a request for the right to remain pending the decision.

Decision & reasoning:

The procedure was set aside, and the following questions were submitted to the Court of Justice of the European Union (CJEU) for a preliminary ruling. According to the administrative court, these issues are material for the decision, as they clarify if a plaintiff can request a transfer of Member State responsibility under the Dublin Regulation III due to a delay of proceedings. Additionally, the court considered those questions necessary since they will affect a large number of Dublin decisions which would be delayed on account of the considerable amount of applications.

The administrative court would answer the questions accordingly:

1.    Is an asylum seeker permitted to claim the transfer of responsibility to the requesting Member State by reason of the time limit for a take charge request having expired?

This question is to be confirmed, since the CJEU has clarified in earlier judgements (C-63/15 (Ghezelbash) and C-155/15 (Karim)) that an asylum applicant has the right to appeal against a decision to take charge.

Primarily aiming to review the application of the regulations, this could question the jurisdiction of member states, even if there are no systematic weaknesses in their asylum procedure. Accordingly, the member state must ensure that the procedures specified in the regulation are carried out without errors. This should include adherence to time limits.

2. If question one is answered in the affirmative: Is an asylum seeker equally permitted to claim for the transfer of responsibility, if the requested Member State continues to be prepared to receive him?

This is equally to be confirmed, as it is the member state’s duty, irrespective of the willingness of the requested country, to ensure that the regulations are applied without errors.

3. If question two is answered in the negative: Is it possible to conclude from the express or rather fictitious approval (Article 22(7) of the Regulation) of the requested Member State that they may continue to be prepared to receive the asylum seeker?

This question is to be confirmed as long as the requesting member state has appropriately informed the requested member state about the substantial circumstances of the case and the time limit to respond to an application for admission has expired (Art. 22 Abs. 1 und 6 VO 604/2013).

4. Is it possible for the two-month period under Article 21(1)(2) of the Regulation to end after the three-month period under Article 21(1)(1) of the Regulation, if the requesting Member State lets more than a month pass after the beginning of the three month period before making enquiries of the EURODAC database?

The court suggests that the three month period sets the limit for the two month period whereby it is irrelevant that the norms start running at different points in time.  The court emphasises that it is the sense and purpose of the Article to restrict the three month period to two months in light of the clear facts where there is a hit on Eurodac.

5. Is an application for international protection deemed to have been validly made by the issuing of a certificate stating the person is an asylum seeker or only by the recording of a formal application for asylum within the meaning of Article 20(2) of the Regulation? In particular:

a. Is a certificate stating the person is an asylum seeker a form or a record within the meaning of Article 20(2)?

b. Is the responsible authority within the meaning of Article 20(2), the authority that is responsible for receiving the form or creating the record or is it the authority that is responsible for taking a decision in respect of the application for asylum?

c. Has such a record been received by the responsible authority where the substantial content of the form or the record has been communicated or is it required that the original record or a copy of the record is transmitted?

According to the court, the application for international protection is deemed to have been validly made upon the first issuing of a certificate stating the person is an asylum seeker.

a)    The court suggests that the confirmation is an administrative record.

b)    According to the administrative court, the “responsible authority” is the authority accepting the form or creating the record.

c)    This question is only relevant if the “responsible authority” means the authority responsible for deciding the asylum claim. According to the court, for such a record to have been received by the authority, it is sufficient that the substantial content of the record has been transmitted.

6. Is it possible that delays between the first time applying for asylum or the acknowledgement of confirmation to apply for asylum and the take charge request might lead to a change of responsibility or is the member state, who received the asylum application (here: Germany), obliged to step in and take charge?

The administrative court states that such delay obliges the member state to claim its right to step in and take over the responsibility of the claim if the status of the application for admission has been unreasonably delayed.

7. If question 6 is answered in the affirmative with respect to one of the alternatives: After which period of time is there an unreasonable delay in the status of an application for admission?

According to the court, there is an “unreasonable delay” where a member state has not made the application within a year.

8. If, in an application for admission, the requesting Member State only states the date of the entry into that state as well as the date of the formal application for asylum being made but the requesting Member State does not state the date of the first request for asylum or rather the date of the first issuing of a certificate stating the person is an asylum seeker: does this comply with the time limit as per Article 21(1)(1) of the Regulation or is such an application “ineffective”?

The court states that such an application for admission complies with the time limit. However, the information must be accurate and complete in order to give the requested member state the opportunity to check its responsibility to conduct the asylum proceedings. 

Outcome:

The procedure was set aside.

The request for suspensive effect was granted 

Subsequent proceedings:

The procedure was set aside.

Request to the European Court of Justice for a preliminary ruling, reference C-670/16 Mengesteab. The CJEU provided its judgment on the 26 July 2017 and held that the right to an effective remedy also covers an applicant’s right to challenge transfer decisions where Member States fail to meet the applicable time limits to make a take charge request. Moreover, the Court ruled that the two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests. This period should start from when the authorities receive the positive hit in the database. Lastly the CJEU held that for an application to be considered “lodged” under DR III, it is not necessary for the written document prepared for that purpose to have a precisely defined form or for it to include additional information relevant to the application of the Dublin criteria. It suffices that the competent authority is informed, with certainty, of the fact that a third-country national requested international protection. 

A later preliminary reference (Case C-36/17) was lodged by the Minden Administrative Court reflecting substantially the questions referred in Mengesteab but relating to subsidiary protection applicants. A summary can be found here of the questions in English.

Observations/comments:

This case summary was written by Melina Heinl, a LLM student at Queen Mary University, London.

This case summary was proof read by Christian Freuling, a GDL student at BPP University.

Other sources:

Bundesamt für Migration und Flüchtlinge, Aktuelle Zahlen zu Asyl, November 2016.

Göbel-Zimmermann/Masuch/Hruschka, in: Huber, Aufenthaltsgesetz, 2. Auflage 2016, § 60 AufenthG.

Habbe, Asylmagazin 2016, 206, 210; Hoppe, NVwZ 2016, 1160, 1161.

Hruschka/Maiani, in: Hailbronner/Thym, EU Immigration and Asylum Law, Part D VI, Art. 27.

Bruns, in: Hofmann, Ausländerrecht, 2. Auflage 2016, § 27a AsylG.

Funke-Kaiser, in: GK-AsylG, § 27a.

Marx, AsylG, 9. Auflage 2016, § 29.

Filzwieser/Sprung, Dublin III-Verordnung, 1. Auflage 2014, Art. 20.

Hruschka/Maiani, in: Hailbronner/Thym, EU Immigration and Asylum Law, Part D VI, Art. 21.