Germany - Administrative Court of Aachen, 17 November 2015, Az. 8 K 658/15.A
| Country of Decision: | Germany |
| Court name: | Administrative Court of Aachen |
| Date of decision: | 17-11-2015 |
| Citation: | Case No. Az. 8 K 658/15.A |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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.” |
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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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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. |
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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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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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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.” |
Headnote:
The question remains open and needs to be clarified in legal proceedings, whether there are systemic flaws in the Bulgarian asylum procedure and conditions of admission, such as pose a risk of infringement of Article 4 Charter of Fundamental Rights of the European Union (CFR) (cf. Article 3(2) Regulation No. 604/2013(Dublin III)) – in particular in the case of a return under the Dublin system.
Facts:
The Applicant of unclear origin stated that he travelled from Turkey to Bulgaria and from there to Germany. For this reason, according to the first sentence of Art. 13(1) Dublin III, Bulgaria is the responsible State for processing the applicant's asylum application. On 1 August 2015, the German Federal Office for Migration and Refugees (the Federal Office) issued a decision to deport the Applicant to Bulgaria. The Applicant appealed this decision and applied for a declaration of the suspensive effect of his appeal.
Decision & reasoning:
The Federal Office rejected the asylum application of the applicant on the grounds that Bulgaria is the responsible member State (MS) for processing the asylum application. The Administrative Court ordered the suspensive effect of the Claim 8 K 658/15 against the rejection of the Federal Office, and the question remains unsettled, as to whether Bulgaria’s responsibility for the execution of the asylum procedure of the Applicant under Art. 13(1) Dublin III is in conflict with Article 3(2)(2) Dublin III.
The Court held that the so-called transfer deadline according to Art. 29(1)(1) Dublin III ( i.e. a transfer must occur within 6 months) cannot expire while interim protection proceedings are pending.
According to Article 3(2) Dublin III, a transfer to another MS may not occur, where the asylum system and conditions of admission show systemic flaws, which entail a risk of violation Article 4 of the CFR. The “principle of mutual trust” (cf. Art.78. AEUV) applies. There is a presumption that the treatment afforded to foreigners, who are entitled to a protection status, complies with fundamental rights in every Member States. While it is a rebuttable presumption, the hurdle for rebutting the presumption is high due to the important goal of the Common European Asylum System (CEAS). Not every potential breach of a fundamental right or most minor violation will be sufficient (cf. ECJ, Decision of 21 December 2011 C-411/10 and C-493/19, C-411/10, CJEU, Decision of 10 December 2013 C-394/12, FCC Decision of 19 March 2014-10 B 6/14.
Systemic flaws are those flaws that are either already embedded in the asylum and admission regime and which affect all asylum seekers or certain groups of asylum seekers and not just in random or individual cases, but foreseeably and regularly, or; may arise by way of factual circumstances, which result in a theoretically properly designed asylum and conditions of admission being unable to fulfill its intended function in its entirety or in large part and render it largely ineffective.
Systemic flaws, must also affect individually the particular asylum seeker. It is not enough, that merely abstract structural flaws are established.
The Court considered a UNHCR report of June 2015, and found the information contained in the report to be contradictory. It is unclear from the UNHCR Report, whether in the case of a return after a 3 months’ and 10 days’ period after the registration of the application, an asylum seeker would be detained and only permitted to lodge a subsequent application or whether he would be taken into a reception facility and the original asylum application be resumed.
In the first case, therefore, there may be serious indications that systemic flaws exist in the Bulgarian asylum procedure, as a full examination of the merits of the asylum application of those concerned would not take place in any MS. The Court will have to clarify in the main proceedings whether systemic flaws exist in Bulgaria in the main proceedings.
Outcome:
Application for the suspensive effect of the decision of the German Federal Office for Migration and Refugees of 1 April 2015 to transfer the applicant is granted.
Subsequent proceedings:
The principal proceedings will be conducted before the Administrative Court of Aachen under case no. 8 K 658/15.A.
Observations/comments:
This case summary was written by Avril Rushe, a BPTC student at BPP University.
This case summary was proof read by Iryna Valdayeva, a student at BPP University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany – AsylvfG ( Asylum Procedure Act) – §27 |
| Germany – AsylvfG ( Asylum Procedure Act) – §34 |
| Germany – VwGO – ( Code of Administrative Court Procedure) § 80 |
Cited Cases:
Other sources:
UNHCR, updated answers to questions from UNHCR Germany in connection with transfers in the Dublin system, June 2015.