Germany – Federal Constitutional Court, 17 September 2014, 2 BvR 1795/14
Keywords:
| Keywords |
|
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.” |
|
Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
|
Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
|
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." |
|
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." |
|
Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The decision of the German Federal Constitutional Court allowed a Dublin transfer of a woman and her infant child to Italy stating that the applicants did not sufficiently substantiate that they were at risk of living on the streets when returned to Italy.
The competent authority has to provide suitable guarantees to ensure the well-being of the infant applicant when returned to Italy.
Facts:
The applicants are a woman from Ethiopia and her infant child. In January 2014 they travelled to Germany and requested asylum. The Federal Office for Migration and Refugees (BAMF) noted that they had already sought asylum in Italy.
The BAMF issued a decision on 16 June 2014 that the applicants were not entitled to asylum in Germany as they had already received subsidiary protection in Italy and ordered their deportation.
The applicants’ claim against this decision was rejected by the Administrative Court of Kassel on 8 July 2014. The court found that the reception conditions in Italy did not show systemic deficiencies. Only single parents with children were at risk of being treated inappropriately when transferred to Italy. This exception was not applicable to the applicants, since the partner of the female applicant also had to leave Germany for Italy.
The applicants claim that having to return to Italy poses a high risk of having to live on the streets, having no access to health care and nutrition.
Decision & reasoning:
The German Federal Constitutional Court (FCC) rejected the application. It nevertheless instructed the competent authority to provide suitable guarantees to ensure the well-being of the infant applicant when returned to Italy.
The FCC reasoned that the applicants had not sufficiently substantiated that they were at risk of living on the streets when returned to Italy. The court therefore did not have to examine if the Italian reception conditions showed systemic deficiencies.
In its reasoning the FCC invokes its own jurisprudence and the one of German Administrative Courts concerning Dublin transfers.
According to the jurisprudence of the FCC the competent German authority has the duty to contact the competent authority of the receiving country before the transfer, clarify the facts and provide suitable guarantees where appropriate. It has to verify, in particular, the health status of the applicant and abstain from the transfer if necessary.
Following the jurisprudence of German Administrative Courts only the BAMF is competent to examine Dublin transfers. It has to consider obstacles originating from the transferring country as well as from the receiving country. If necessary, the BAMF has to refrain from the deportation order.
A Dublin transfer is impossible if there is a concrete risk of the transfer aggravating the health conditions of the foreigner and this risk cannot be eliminated or reduced by special arrangements. This is for example the case if the applicant is not fit to travel. The BAMF has to consider the entire transfer process beginning with the deportation notice.
The competent authority also has to consider that there is usually no help from relatives in the receiving country the applicant can count on. It has to evaluate if, due to reports of internationally recognised refugee organisations or the German Foreign Ministry, there are indications of capacity problems in the receiving country.
Last but not least, the competent authority has to respect family unity and the best interest of the child. If families with newborns or infants up to three years are transferred, it has to be ensured beforehand that they obtain a safe accommodation in the receiving country.
Outcome:
Application denied; Decision incontestable.
Subsequent proceedings:
This Case summarises the most important jurisprudence of the FCC and German Administrative Courts concerning Dublin transfers.
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Germany – Basic Law (Grundgesetz) |
| Germany - Bundesverfassungsgerichtsgesetz (BVerfGG) |
| Germany - Asylverfahrensgesetz (AsylVfG) |
| Germany - Aufenthaltsgesetz (AufenthG) |