Germany - VG 21 1 B 583/18 MD, Administrative Court Magdeburg, 13 November 2018
Keywords:
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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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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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
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Education (right to)
Description
PerArt. 10 RCD Member States must grant minor children of asylum seekers and asylum seekers who are minors access to the education system under similar conditions as nationals of the host State for so long as an expulsion measure against them or their parents is not actually enforced. Per Art. 27 QD Member States must grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals . Adultsgranted protection status are entitled to access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident |
Headnote:
The Court decides that a beneficiary of international protection cannot be deported to a country in which the individual concerned faces a serious risk of inhumane or degrading treatment. The risk of destitution after deportation is only excluded when the receiving state authorities provide a specific, and not just a general, assurance to the individual concerned.
Facts:
The German Federal Office of Migration and Refugees (BAMF) rejected the application of a Syrian national for international protection in Germany. The grounds for the rejection lie on the fact that the applicant had already been granted international protection in Greece. The BAMF thus ordered the applicant’s deportation to Greece.
The Administrative Court of Magdeburg holds that a suspension of a deportation under national law can only be ordered in cases where there are serious doubts on the lawfulness of the BAMF’s conclusion regarding any obstacles to the deportation. The deportation of a foreign national is not permitted if it violates rights of the European Convention on Human Rights. The applicant claims that he will face a real risk of inhuman and degrading treatment under Article 3 ECHR if he is deported to Greece.
Decision & reasoning:
The Court holds that where an asylum application is inadmissible, the lawfulness of a deportation still needs to be examined. Therefore, even though the applicant is a beneficiary of international protection to Greece, the deportation of the applicant must be examined in view of any serious doubts of a violation of the ECHR.
The Court argues that the returning state violates Article 3 ECHR if state authorities know, or ought to know, that conditions contrary to Article 3 prevail in the receiving state. An overall assessment must take into account the specific circumstances of the applicant as well as up-to-date reports of NGOs on the current situation in the receiving state. Against this backdrop, the Court argues that recent reports emphasise that beneficiaries of international protection in Greece do not have practical access to accommodation, food distribution, and sanitary facilities over a longer period of time. Moreover, the Court finds that, although domestic law provides access to education, health care, employment, accommodation, and social benefits for beneficiaries of international protection under the same conditions as Greek nationals, the domestic provision has not been enforced. Therefore, the Court concludes that the living conditions, which the applicant would face in case of deportation, are not in line with the requirements of Article 3 ECHR.
Regarding individual assurances for the protection of the rights of refugees after a deportation, the Court determines that general assurances by Greek authorities that they will effectively implement the provisions of the Qualification Directive as transposed into domestic law are insufficient. Rather, individual assurances by state authorities must be specific to the individual concerned.
Outcome:
Application for return suspended