Germany – Administrative Court Osnabrück, Order of 20 March 2020, 5 B 88/20
Keywords:
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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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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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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
The Dublin transfers, which have been suspended indefinitely due to the so-called Corona pandemic, constitute a domestic-related obstacle to execution in the sense of an objective impossibility which leads to a temporary suspension of deportation (Duldung) in accordance with § 60a para. 2 sentence 1 AufenthG.
The suspension constitutes a subsequent change in circumstances leading to the order of suspensive effect pursuant to § 80 para. 7 VwGO.
Facts:
The applicant was about to be transferred to Italy. Before deportation could take place, Dublin transfers to and from Italy were suspended until further notice due to measures taken to contain the so-called Corona virus.
Decision & reasoning:
In its decision, the court examined whether circumstances relevant to the decision have subsequently changed and whether the suspensive effect must be ordered pursuant to § 80 para. 7 VwGO.
It comes to the conclusion that the factual circumstances have changed significantly as a result of the occurrence and spread of the so-called corona pandemic. It can now be assumed that there is a domestic-related obstacle to execution with the consequence that a temporary suspension of deportation (Duldung) must be granted in accordance with § 60a para. 2 sentence 1 AufenthG.
A domestic-related obstacle to execution is given, among other things, if deportation cannot be enforced due to objective circumstances that lie in the person of the foreigner or in external circumstances. An impossibility of deportation for factual reasons, as opposed to a mere delay, exists in any case if the point in time at which deportation can be carried out is uncertain.
Due to the suspension of Dublin transfers, it cannot currently be assumed that transfers to Italy will be possible again in the short term. In view of the massive restrictions on public life throughout Europe and the unforeseeable further developments, the court is convinced that a transfer won`t be possible within a foreseeable period of a few weeks in any case.
Outcome:
Application granted, order establishing the suspensive effect.
Observations/comments:
This case summary was written by Lea Kolligs, trainee lawyer at the Düsseldorf Regional Court and member of the research group of the Refugee Law Clinic Cologne.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany - § 60a para. 2 sentence 1 AufenthG |
| Germany - § 80 para. 7 VwGO |
Other sources:
Domestic Case Law Cited
Federal Constitutional Court (Bundesverfassungsgericht), 17 September 2014 - 2 BvR 1795/14
Other Sources Cited
Regarding the suspension of transfers to and from Italy due to the so-called corona disease: see circulars of the Italian authorities of 24 and 25 February 2020.