Germany - Administrative Court (of) Hannover, case no. 1 B 5946/15, 7 March 2016
Keywords:
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is 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. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.
When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.
In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.
Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law.
Facts:
The Applicants, a mother with her three children (born in 2004, 2006 and 2009), are Russian nationals of the Yazidi faith. Together with the husband and father of the children, the Applicants entered France in autumn of 2012 and filed an application for international protection which was rejected by the French authorities. In 2015, the Applicants entered Germany and filed a subsequent application for international protection.
The Applicants submitted to the German authorities that the father of the children had been extradited from France to Germany due to a criminal offence and is serving a prison term of nine years. Consequently, the Applicants were left alone in France where the mother subsequently suffered a mental breakdown. The Applicants also submitted that they were presently receiving support from the children’s grandparents who are German nationals. The children were attending school in Germany and wished to stay close to their father.
Following the comparison of the fingerprints with the EURODAC database, the Federal Office noted that the Applicants had already filed an application for international protection in France. The Federal Office thus filed a request to take back which was accepted by the French authorities in accordance with Article 18 (1) (d) of the Dublin-III-Regulation.
Consequently, the Federal office (i) declared the application for international protection filed in Germany as inadmissible, (ii) ordered the applicants to be deported to France, and (iii) limited the statutory prohibition of entry or stay to 12 months starting from the date of the deportation.
The Federal Office held that the applications were inadmissible according to Section 27a of the Asylum Act (AsylG) because France was responsible to examine the applicants’ claims for international protection following their applications in 2012. Since there were no extraordinary humanitarian grounds apparent, there were no reasons to invoke the discretionary clause under Article 17 (1) of the Dublin-III-Regulation.
The Applicants appealed the decision to the Administrative Court of Hannover (the “Court”)(File 1 A 5945/15) and separately claimed interim legal protection against the deportation order of the Federal Office (File 1 B 5945/15) pursuant to Section 80 (5) of the German Code of Administrative Court Procedure (VwGO).
Decision & reasoning:
The Court granted the Applicants’ request for interim legal protection and ordered the appeal to have suspensive effect.
In its decision, the Court addressed three main aspects establishing the suspensive effect of the Applicants’ appeal:
1. Which circumstances are sufficient to derogate from the provisions on responsibility laid down in the Dublin-III-Regulation according to Art. 17 (1) Dublin-III-Regulation?
Article 17 of the Dublin-III-Regulation does not specify the circumstances under which a Member State may derogate from the provisions on responsibility. However, recital 17 of the Dublin-III-Regulation explicitly states that Member States may derogate from the binding criteria of responsibility laid down in Art. 3(1) of the Dublin-III-Regulation based on humanitarian or compassionate grounds in order to bring together family members, relatives, or persons that are related in any other way. In this context, recitals 13 and 14 of the Dublin-III-Regulation set out that the best interests of the child and the respect for family life should be primary considerations when applying the Regulation. Article 6 (3)(a) of the Dublin-III-Regulation also stipulates that Member States shall take due account of the possibility of family reunification when assessing the best interests of the child.
Applying this, the Court held that the Federal Office failed to take due account of these considerations in the assessment of the discretionary clause since it disregarded the possibility of family reunification and the particular interest of the children in maintaining regular contact with their father during his imprisonment in Germany. Additionally, the support of the applicants by the grandparents, who are residing in Germany, in particular with regards to the care and upbringing of the children due to the mothers’ mental illness, would have had to be taken into account.
The Court therefore concluded that there were exceptional circumstances which justified a derogation from the provisions on responsibility pursuant to Article 17 of the Dublin-III-Regulation, taking into consideration humanitarian grounds and such of family reunification
2. Does the Federal Office have discretionary powers in such a case?
In general, Federal Office enjoys discretionary powers when applying Art. 17 (1) of the Dublin-III. However, the Court concluded that in cases involving humanitarian considerations there may be no room for discretion by the Federal Office. In the Court’s view there was no possible action other than the invocation of the discretionary clause in order to safeguard the primary objectives of the Dublin-III-Regulation, namely the best interests of the child and the support of family reunification.
3. Can the provision of the Dublin-III-Regulation governing procedural aspects of a Member State’s responsibility for examining an application for international protection provide for subjective rights of the individual?
In the Court’s view, the procedural rules laid down in the Dublin-III-Regulation, for example the rules on responsibility or time limits ,do generally not provide for subjective rights of the individuals since such rules merely govern the (legal) relationship between the Member States.
However, the Court held that Article 17 of the Dublin-III-Regulation constitutes an exemption given that the discretion granted when assessing the discretionary clause aims precisely at taking into consideration humanitarian and compassionate grounds. Article 17 of the Dublin-III-Regulation therefore governs not only the legal relationship between Member States but also serves to protect human rights/fundamental rights. Consequently, the Court concluded that Article 17 of the Dublin-III-Regulation serves to protect rights of individuals and therefore provided the Applicants with a subjective right which can be enforced in a court of law.
Outcome:
The Court granted the Applicant’s request for interim legal protection and ordered the Applicants’ appeal have suspensive effect (against the Federal Office’s deportation order to France).
Subsequent proceedings:
The Court’s decision no. 1 B 5946/15 is limited to the Applicants’ claim for interim legal protection against the Federal Office’s deportation order and cannot be appealed.
Observations/comments:
This case summary was written by Linklaters LLP.
It was proof read by Ann-Christin Bolter, an LLM graduate in Human Rights Law at Queen Mary's Univeristy, London.