Germany- Administrative Court Braunschweig, 12th of October 2016, 5 A 332/ 15
Keywords:
| Keywords |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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." |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
A Dublin Transfer to Italy should be prevented when the person concerned is a vulnerable person as per in Article 3 (2) Dublin III Regulation.
Facts:
The applicant is a Somalian citizen, arriving to Germany on 4 April 2013. Upon applying for asylum in Germany the administrative authorities found Italy to be responsible for his claim on the basis of a EURODAC hit. His application was, therefore, rejected and his transfer to Italy ordered.
The applicant appealed against the transfer decision on 29 January 2014 on grounds that he is in need of immediate medical assistance since he suffers from tuberculosis and Hepatitis B.
Decision & reasoning:
Referring to Article 3(2) of the Dublin Regulation the Court held that whilst the triggering of the article is at the authorities discretion, this discretion is considerably reduced in a case such as that at present.
The applicant, due to his illness, belongs to a circle of vulnerable persons who need constant surveillance assistance. In Tarakhel the European Court of Human Rights has concretely stated that the deportation to Italy of vulnerable persons can give rise to an Article 3 ECHR violation in the absence of an individual guarantee that the individual will be cared for in conditions which meet his or her specific needs. The ECtHR relied on empirical evidence showing a lack of capacity in reception centres, and a significant imbalance between the number of asylum applications and the available places for accommodation.
There were, therefore, serious doubts as to the capacity of the system and it could not be excluded that a considerable number of asylum seekers would not find housing or would be forced to live in overcrowded shelters or be subject to harmful or violent conditions. In this case and on grounds of the applicant’s individual circumstances and the risk of inhumane or degrading treatment that the applicant risks if he is returned to Italy, the Court annuls the decision to transfer the applicant to Italy.
Outcome:
The appeal is successful.
Observations/comments:
This case summary was written by Jana Kumstel.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Germany – Federal Constitutional Court, 30 April 2015, 2 BvR 746/15 |
| Germany - VG Hannover, Urt. v. 26.03.2015- 10 A 1060/15- juris |
Follower Cases:
| Follower Cases |
| Portugal - I. v. Immigration and Borders Service, No. 2364/18.0BELSB, 14 May 2020 |
Other sources:
Flüchtlingsrat Baden Württemberg, Bundesverfassungsgericht: Abschiebung besonders schutzbedürftiger Personen nach Italien setzt konkrete Zusicherung bei Erlass der Abschiebung voraus, 03.06.2015, abrufbar unter: http://fluechtlingsrat-bw.de