Germany - Administrative Court of Freiburg, 14 January 2015, no. A 1 K 3128/14
| Country of Decision: | Germany |
| Court name: | Administrative Court of Freiburg |
| Date of decision: | 14-01-2015 |
| Citation: | Decision of 14/01/2015, case no. A 1 K 3128/14 |
Keywords:
| Keywords |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
In light of the provisions of Article 5 Dublin III Regulation, which serve to protect the asylum seeker in a Dublin transfer, the individual subject to a Dublin transfer decision must be seen to have a subjective right to a personal interview. Before such an interview, which must take into account the subjective perspective of the individual, has been conducted in a manner which meets the criteria of Article 5 of Dublin III, the authorities cannot conclude that no obstructions to the removal are present.
Facts:
The applicant applied for asylum in Italy before leaving the country and entering Germany on 20/05/2014.
Germany issued a take back request to Italy dated 28/07/2014, to which it received no reply, rendering Italy responsible for the asylum claim under Article 25(2) Dublin III.
On 28/10/2014 the BAMF (Federal Office for Migration and Refugees) issued a decision to transfer the applicant to Italy. The applicant subsequently launched an application for suspensive effect to be applied to his transfer pending a decision in his appeal of the Dublin transfer decision.
Decision & reasoning:
The Court found that the public interest in effecting immediate transfer of the applicant did not outweigh the interest of the applicant in having his transfer to Italy suspended pending a decision in his appeal of the transfer decision.
The Court found the transfer order to be in violation of German law because the BAMF had failed to provide the applicant with a personal interview which met the criteria of Article 5(1) of the Dublin III Regulation. According to the decision, neither condition for foregoing the personal interview, as provided for in Article 5(2), was present in the case of the applicant. Moreover, the BAMF had only relied on the existence of entries in EURODAC and an unsuccessful take back request with Switzerland to determine that Italy was the responsible state for processing the applicant’s asylum claim.
In addition, the Court reasoned that it could be concluded that Article 5(1) of the Dublin III Regulation does not only serve the objective interest and the State’s interest in determining which State was responsible for the asylum application, but that it also establishes subjective rights. The further provisions of Article 5, namely in 5(3), 5(4) and 5(5), which serve to protect the applicant, demonstrated that the personal interview serves, at the very least, also the interests of the applicant. To support its view that the BAMF has the duty to hear the applicant due to his personal rights, the Court asserted that the obligation to hold a personal interview flows from the right to be heard, which was derived here not from Article 41 of the Fundamental Rights Charter (because the case at hand concerned a national authority and not the Union itself), but from the general principle which characterises EU law. The Court expressed that the right to be heard guarantees every individual the opportunity to present his or her position during an administrative procedure before a decision is reached to the disadvantage of that individual, citing the case of C-249/13 before the CJEU.
The Court further reasoned that the BAMF was obliged by law to carry out an assessment of whether reasons exist to halt the transfer. The transfer order may only be issued as long as it can be established that it is actually possible to carry out the transfer, and as long as all eligibility criteria are met. This means that the BAMF must assess aspects relating to the country receiving the transfer as well as domestic elements that could obstruct the execution of the removal order. Referring to domestic jurisprudence (Administrative Court of Baden-Württemberg, Decision of 31/05/2011 – A 11 S 1523/11), the Court found that the BAMF was also under obligation to carry out an assessment of whether the removal of the individual was legally or factually possible on the basis of subjective reasons relating to the foreign national who is the subject of the order. In order to be able to make this assessment, it was essential to establish, in a personal interview with the aid of an interpreter conducted in a language which the individual understood, the possible existence of any removal obstructions, especially those emanating from the applicant.
Outcome:
Suspensive effect was ordered to the contested transfer decision.
Observations/comments:
This case raises issues which are pertinent to the preliminary references submitted to the CJEU in the cases of C-155/15 – George Karim v Migrationsverket and C- 63/15 - Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie.
This case summary was written by David Watt, a researcher at the Odyessus Academic Network, Université Libre de Bruxelles (ULB).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, 11 December 2014 |