Germany – Administrative Court of Justice Baden-Württemberg, 15 March 2017, A 11 S 2151/16

Facts:

The applicant is a Gambian national, who left Gambia on  5 October 2015 and travelled through Italy to Germany.  He applied for asylum on 23 December 2014. The German Federal Agency for Migration and Refugees requested his transfer to Italy, as a Eurodac request revealed that the applicant had previously applied for asylum in Italy . The applicant was supposed to be transferred to Italy on 8 July 2015 but thiswas not possible because the applicant was not found at his apartment. The Federal Agency informed the Italian government that a transfer was not possible as the applicant had absconded and set a deadline for the transfer for 10 August 2016 (Art. 29 (2) Dublin-Regulation). Another transfer attempt failed when the applicant refused to board the aeroplane. The claim against the transfer filed in the lower Administrative Court was denied. The appeal was then granted but was set aside for the preliminary ruling of the Court of Justice of the European Union. 

Decision & reasoning:

1. Question: Under which conditions is an asylum seeker absconding within the meaning of Article 29 (2) 2 of the Regulation (EU) No 604/2013? Only when he deliberately and willingly withdraws himself from the scrutiny of national authorities in order to frustrate or complicate his transfer, or does it suffice if over a long period of time he does not live in his allocated dwelling without informing the authorities of his whereabouts? Following which, can the asylum seeker invoke the expired transfer deadline, claiming that he was not absconding?

The High Administrative Court concluded that an asylum seeker, despite a mistaken legal basis in the regulation, can be considered as having “absconded” if the individual fails to appear at his/her place of habitual residence without notice. The court reasoned that this rule should ensure an efficient operation of the Dublin Regulation. The legal definition of “abscond” of Art 2 lit. n Regulation (EU) No. 604/2013 requires an act which knowingly referred to the completion of the transfer. Therefore as a matter of principle, one did not “abscond” if he/she was simply not present in that moment in the dwelling. However, the court argued it would lead to difficulties of proof if the Federal Agency always had to prove that the individual stayed away purposefully. Therefore, the Administrative Court recommended a broader interpretation of the term “abscond, in which it is sufficient that the Federal Agency does not know the whereabouts of the applicant in the moment of the transfer and there is also no reliable information on where the applicant is.

2. Question: Is an extension of the time limit pursuant to Article 29 (1) 1 Regulation (EU) No 604/2013 only possible when the transferring Member State informs the responsible Member State and sets a concrete deadline for the actual transfer, or must the two concerned States mutually extend the deadline?

According to the Federal Administrative Court, mutual agreement would be impractical, as a such a precondition would often come to nothing and therefore a unilateral deadline extension would be more efficient. The court reasoned that the wording of Art. 29 (2) 2 Regulation (EU) No. 604/2013 foresees a joint solution in the case of sickness or flight, however the wording also contains the assumption that the transferring Member State can unilaterally set the deadline extension, as long as it informs the responsible Member State and the new deadline is not longer than 18 months.

3. Question: Is the transfer of a beneficiary of international protection to the responsible Member State (in which his status was recognised) inadmissible in light of serious and life threatening circumstances he might be exposed to upon return under Article 4 of the Charter of Fundamental Rights of the European Union? Does this question fall under the scope of the European Union law? Which provisions of the European Union law should be relied upon when assessing the living conditions of a beneficiary of international protection? ?

The court considered this question as especially relevant, as effective and humane refugee protection must be guaranteed not only during the international protection status application period, but also afterwards. In this case it is important that the concerned party can lead a life under humane conditions in the responsible Member State. The court, therefore, not only has to examine potential systematic flaws (according to Art. 3 (2)(2) Regulation (EU) No. 604/2013) in the asylum procedure but also factor in the subsequent situation. Hence, an asylum seeker cannot be transferred to a Member State if he/she might risk inhumane living conditions after an asylum application has been granted. The minimum living requirement as a rule is equal treatment as compared to residents; this, however, is often not enough as these protection standards often do not enable vulnerable persons to enjoy the same rights as residents. 

Outcome:

The procedure was set aside, and preliminary questions were sent to the Court of Justice of the European Union. The reference is C-163/17, Jawo.

Observations/comments:

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