Germany - Administrative Court of Düsseldorf, 3 September 2015, 22 L 2944/15.A

Facts:

The applicant is appealing against a transfer ordered in an accelerated Dublin procedure from Germany to Hungary. The latter is the EU Member State responsible for processing the applicant’s asylum application according to the rules of the Dublin Regulation. 

Decision & reasoning:

Although accepting that Hungary is the EU Member State responsible for processing the applicant’s asylum claim under the Dublin Regulation, the Court disputes the position of the German Federal Office for Migration and Refugees that the applicant in fact can be transferred to Hungary. The Court reasons that the applicant indeed cannot legally be transferred to Hungary because this would put him at a serious risk of suffering inhuman or degrading treatment according to Article 4 of the Charter of Fundamental Rights of the European Union (EU Charter) and Article 3 of the European Convention on Human Rights (ECHR) due to the systemic failings in the asylum procedure and reception conditions in Hungary.

The Court then goes on to express that the general presumption in the EU asylum system that every EU Member State constitutes a safe third country where the fundamental rights of asylum seekers are respected, including the principle of non-refoulement, is not in itself an irrefutable presumption.

The Court reflects that a challenge to this presumption does have to meet a high threshold, given the important purpose of the Common European Asylum System. Therefore not every threat to a fundamental right in the receiving Member State would be enough to halt the transfer of an asylum seeker in the Dublin system. However, citing the CJEU ruling in N.S. (C-411/10), the judge reasons that if the Court can be thoroughly satisfied of the probability that such a transfer would represent a risk of inhuman or degrading treatment, suspension of the transfer is justified.

The Court refers to the changes to Hungarian asylum law which came into effect on 1 August 2015, stating that these constitute sufficient evidence of systemic deficiencies in the asylum procedure in Hungary. In particular, the inclusion of Serbia on the list of safe third countries proves the existence of a risk that the applicant, if transferred to Hungary, would be denied access to an asylum procedure in which a substantive evaluation of his reasons for seeking asylum would be examined. The risk exists that the asylum seeker would, for example, be removed to Serbia by the Hungarian authorities without a substantive evaluation of the asylum claim in line with minimum European standards.

According to the Court it is highly doubtful that either the asylum procedure or the reception conditions in Serbia meet the level of the minimum European standards.

Outcome:

Appeal granted and suspensive effect applied to the transfer decision. The matter is referred to the main proceedings in which further examination is required as to whether the individual in this particular case is exposed to a risk of being denied a substantive examination of his asylum claim or of being exposed to a risk of refoulement. 

Subsequent proceedings:

This case follows a long line of German judgments suspending transfers to Hungary based on recent legislative changes to their asylum system, namely:

VG Augsburg  U.v. 18.8.2015 – Au 6 K 15.50155; VG Würzburg B. v. 13 08.2015 - W 7 S 15.50248; VG Düsseldorf B. v. 11.09.2015 - 8 L 2442.15.A; VG  München U. v. 11.09.2015 - M_23_K_15_50045; VG Augsburg U.v. 18.8.2015 – Au 6 K 15.50155; VG Düsseldorf B. v. 20.8.2015 – 15 L 2556/15.A; VG Saarland B. v. 12.08.2015- 3 L 816.15; VG Düsseldorf B. v. 11.08.2015 - 22 L 2559.15.A; and VG Minden, 02.10.15, 19 L 923/15.A; VG Potsdam, 04.09.2015, 4 L 810/15.A.

Observations/comments:

This case summary was written by David Watt, a researcher at the Odyessus Academic Network, Université Libre de Bruxelles (ULB).

Other sources:

Letter to the Serbian Prime Minister from the European Commissioner for Human Rights of 27 November 2013

Hungarian Helsinki Committee information note ‘Building a legal fence’

UNHCR, ‘UNHCR urges Hungary not to amend asylum system in haste’

AIDA, ‘Hungary adopts list of safe third countries of origin and safe third countries’

Amnesty International, ‘Hungary: Change to asylum law puts tens of thousands at risk’