Germany - Administrative Court Munich, 4 August 2016, M 11 K 15.31006
Keywords:
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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.“ |
Headnote:
An application for asylum filed prior to 20 July 2015 cannot be considered inadmissible because subsidiary protection has already been granted by another Member State (if the protection applied for is more favourable than the existing protection). The assessment of the admissibility of an application for asylum filed prior to 20 July 2015 is subject to the laws, regulations and administrative provisions adopted pursuant to the now superseded Asylum Procedures Directive (Directive 2005/85/EU) which provided for inadmissibility of an application for asylum if refugee status had already been granted by another Member State.
Facts:
The Applicant travelled to Germany on 16 May 2014 and applied for asylum on 6 June 2014. Before that, the Applicant had also applied for asylum in Italy on 7 August 2013 where he was granted subsidiary protection. On 8 May 2015, the German Federal Office for Migration and Refugees rejected the application for asylum in Germany and ordered the deportation of the Applicant to Italy on the basis that the Applicant could not seek refugee status in Germany after already having been granted subsidiary protection by the Italian authorities. On 28 May 2015, the Applicant applied for an accelerated procedure and challenged the administrative decision of 8 May 2015 requesting that the German authorities grant him refugee status.
Decision & reasoning:
The Court found that the administrative decision of 8 May 2015 was unlawful as it was based on legal provisions which came into force after the application for asylum had been filed. Under § 60 (1), sentence 3 and (2), sentence 2, of the German Residence Act, German authorities are not obliged to examine or grant refugee status or subsidiary protection if a decision in this regard is already in place. In addition, Article 33 (2) (a) of the Asylum Procedures Directive 2013/32/EU (the “2013 Directive”) provides that a country can reject an application for international protection if international protection, either by way of refugee status or by way of subsidiary protection, has already been granted by another Member State. Pursuant to the transitional provision of Article 52 sentence 1, of the 2013 Directive, however, any application filed prior to 20 July 2015 is subject to the laws, regulations and administrative provisions adopted pursuant to the earlier Asylum Procedures Directive (Directive 2005/85/EU) (the “2005 Directive”). Under the 2005 Directive, an application for asylum is inadmissible if another Member State has already granted refugee status, but not if another Member State has only granted subsidiary protection (as in the case at hand). On the basis that the German application was filed on 6 June 2014, the earlier grant of subsidiary protection in Italy does not render the application for higher protection, such as the refugee status, inadmissible in Germany. The 2013 Directive will only regulate applications filed prior to 20 July 2015 if premature application would be favourable to the applicant, but not if – as in the case at hand – premature application would be unfavourable to the applicant. The Court concluded that the Applicant’s application for refugee status in Germany could not be legitimately rejected by the German Federal Office for Migration and Refugees based on the new Asylum Procedures Directive 2013/32/EU and § 60 (2), sentence 2 of the German Residence Act.
Outcome:
Plaintiff succeeded in his action. The Federal Office’s order of 8 May 2015 was rescinded.
Observations/comments:
This case summary was written by Linklaters LLP.
This case summary was proof read by Julia Oberndorfer, a law student at Leibniz Universität Hannover.