Germany - Administrative Court of Minden, 2 October 2015, case no. 10 L 923/15.A
| Country of Decision: | Germany |
| Court name: | Administrative Court of Minden |
| Date of decision: | 02-10-2015 |
| Citation: | Decision of 02.10.2015, case no. 10 L 923/15.A |
Keywords:
| Keywords |
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Benefit of doubt
Description
The advantage derived from doubt about guilt, a possible error, or the weight of evidence. “When statements are not susceptible of proof, even with independent research, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of 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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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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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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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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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." |
Headnote:
An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary).
Facts:
The Applicant is of unclear origin but declares that he immigrated to Germany via Greece, Serbia and Hungary.
On 22 August 2015, the German Federal Office for Migration and Refugees (the “Federal Office”) issued a decision to deport the Applicant to Hungary. The Applicant appealed this decision and applied for a declaration of the suspensive effect of his appeal.
Decision & reasoning:
The court noted that, under Subparagraph 2 of Article 3(2) of the Dublin III Regulation, an asylum seeker cannot be deported to a Member State whose asylum system is affected by systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (“CFREU”).
It explained that systemic flaws are structural, significant malfunctions that may be rooted in any stage of the asylum procedure. According to the court, the personal experiences of the Applicant are irrelevant to assessing systemic flaws, however, they must be taken into account in the context of the overall assessment. The court emphasised that systemic flaws can be rooted in the asylum and reception system itself. Applying this to Hungary, the court stated that the flaws were neither accidental nor occurrent in isolated cases but instead were predictable and occurred regularly. The court also stated that factual circumstances may constitute systemic flaws if they affect a theoretically well-conceived asylum and reception system. Finally, the court noted that the number of affected individuals is irrelevant as long as the flaw is predictable and occurs regularly.
According to Subparagraph 2 of Article 3(2) of the Dublin III Regulation, these flaws must result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the CFREU. Thus, the court next assessed the standard for “inhuman or degrading treatment”. It stated that “inhuman or degrading treatment” exists if asylum seekers who depend entirely on state aid and are exposed to serious deprivations and distress are faced with indifference from the authorities. It further explained that “inhuman or degrading treatment” results less from legal provisions and more from how they are implemented.
Applying these standards to the case, the court first found that the amendments to Hungary’s asylum law that came into effect on 1 August 2015 create a risk that the Applicant will be deported to Serbia, Macedonia or Greece without substantive examination of his grounds for seeking asylum because the Hungarian authorities deem these countries to be safe third countries and therefore may deport asylum applicants to them without giving applicants access to the Hungarian asylum procedure. The court held that the asylum systems of these three states are defective. It further held that the risk of multiple deportations itself infringes the principle of non-refoulement and thus violates Article 18 of the CFREU if read in conjunction with Paragraph 1 of Article 33 of the 1951 Convention relating to the Status of Refugees.
Second, the court found that there were serious indications that, in the event of a rejection of their applications, certain groups of asylum seekers would not benefit from effective access to asylum procedures in Hungary. The court noted that the Hungarian asylum system provides a short three-day period for filing an appeal of a decision on asylum status. However, the court stated that, on its own, the short delay does not suffice to deny effective access to procedures in Hungary. Instead, the court held that all conditions for filing a suit must be assessed in determining effective access.
Third, the court found that there are serious indications that the recent amendments to asylum legislation in Hungary have extended the grounds on which asylum seekers can be imprisoned. Furthermore, the court noted that some facts indicate that all asylum seekers might be imprisoned in the future, as was the case in Hungary until 2012.
Finally, the court found that public sources reveal that the Hungarian authorities might be unable to adequately provide asylum seekers with basic amenities. However, the court noted that a capacity problem cannot be deduced from the existing discrepancy in numbers between applicants and housing alone (67,000 applications for asylum in the first half of 2015 compared to 2,500 places of accommodation), because most asylum seekers consider Hungary only as a country of transit.
The Administrative Court reserved an extensive examination of these issues for consideration in the principal proceedings but, based on them, it reasoned that the Hungarian asylum system currently demonstrates serious indications of systemic flaws. The court held that the deportation of the Applicant to Hungary may place him at risk of inhuman or degrading treatment (contrary to both Article 4 of the CFREU as well as Article 3 of the European Convention on Human Rights). Consequently, the court held that, pursuant to Subparagraph 2 of Article 3(2) of the Dublin III Regulation, the Applicant’s deportation was impossible because the asylum system of the Member State to which the Applicant would be deported may be affected by systemic flaws resulting in inhuman or degrading treatment.
As a result of the above, the court held that the Applicant’s application was admissible and founded and declared the suspensive effect of the suit.
The court’s decision on condition of Hungary’s asylum procedures departed from previous decisions of the court which had rejected the argument that there are systemic flaws in the Hungarian asylum system.
Outcome:
The application was granted and the suspensory effect declared.
Subsequent proceedings:
The principal proceedings will be conducted before the Administrative Court of Minden under case no. 10 K 2299/15.A.
Observations/comments:
This case summary was completed by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
Amnesty International, Europe’s Borderlands, Violations against refugees and migrants in Macedonia, Serbia and Hungary, July 2015
Asylum Information Database (aida), Country Report Hungary, 17.09.2015
Asylum Information Database (aida), Hungary adopts list of safe countries of origin and safe third countries, 30.07.2015
Budapest Beacon, Hungary’s Vamosszabadi refugee camp dangerously overcrowded, 25.07.2015
Budapest Beacon, Migration aid needs food, blankets and foam mattresses, 19.08.2015
European Asylum Support Office (EASO), Description of the Hungarian asylum system, 04.06.2015
Frankfurter Allgemeine Zeitung (German newspaper), Ungarn nimmt keine Flüchtlinge mehr auf, 24.06.2015
Hailbronner, Ausländerrecht (Annotations to German asylum law provisions), Vol. 3, June 2014, § 34a AsylVfG para. 21
Hungarian Helsinki Committee, Hungarian government reveals plans to breach EU asylum law and to subject asylum-seekers to massive detention and immediate deportation, 04.03.2015
Hungarian Helsinki Committee, Building a legal fence – Changes to Hungarian asylum law jeopardise access to protection in Hungary, 07.08.2015
Süddeutsche Zeitung (German newspaper), Ungarn relativiert Aufnahmestopp für Asylsuchende, 24.06.2015
Süddeutsche Zeitung (German newspaper), Ungarn schottet sich ab, 23.07.2015
UNHCR (UN High Commissioner for Refugees), UNHCR urges Hungary not to amend asylum system in haste, 03.07.2015
UNHCR (UN High Commissioner for Refugees), Serbia as a country of asylum, August 2012
Die Welt (German newspaper), Warum Ungarn Angst vor zu vielen Asylbewerbern hat, 24.06.2015
Die Welt (German newspaper), Ungarn zieht Grenzzaun gegen Flüchtlinge hoch, 06.07.2015
Statistics on asylum applications in Hungary: http://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1 & language=de&pcode=tps00189&plugin=1 (last accessed 21.08.2015)