Germany – Administrative Court Berlin, 15. March 2019, VG 23 L 706.18 A
Keywords:
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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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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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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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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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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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." |
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Sponsor
Description
"Broadly, a person or entity which undertakes a (legal, financial or personal) engagement, promise or pledge, on behalf of another. In the EU context of Family Reunification, a third-country national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The discretionary clause in Art. 17 II Dublin-III regulation might under certain circumstances oblige the member states to take charge of an applicant. This can be particularly the case, if the competence of the member state under chapter III of the Dublin-III regulation would not be given because of a deadline expiry the applicant had no influence on.
Facts:
The applicants are four Syrian nationals. Applicants 1 and 2 are married, applicant 3 is their adult daughter. All three of them are staying in Greece. The fourth applicant is the other applicants’ underage son or brother respectively. He lives in Berlin and was granted subsidiary protection status.
Applicants 1 to 3 applied for asylum in Greece in October 2017. At the same time, they expressed the wish of a family reunification with their underage son and wished that Germany would examine their requests for asylum. Applicant 4 also expressed the wish of a family reunification in writing.
On 15th January 2018 the Greek authorities submitted a take charge request under Art. 21 I Dublin-III regulation for applicants 1 to 3 to Germany. They reasoned that applicants 1 and 2 wished to be reunited with their underage son in Germany. Applicant 3 is severely traumatized because of detention, rape and torture that she suffered in Syria and is thus dependent on her parents.
On 18th January 2018 the German Federal Office for Migration and Refugees (BAMF) rejected the take charge request. At the same time, they requested further documents to verify that the applicants are family members including fingerprints and photographs. They said that the request would be reexamined as soon as the documents arrived.
On 2nd February 2018 the Greek authority sent a Holding letter to the BAMF, asking to not yet finally decide upon the matter because it needed more time to gather the requested information. The documents were sent to BAMF on 26th February 2018.
In October 2018 the BAMF rejected the take charge request arguing that the deadline of submission under Art. 5 II Dublin-III Implementing regulation had expired so Greece was responsible for reviewing the asylum applications.
The Greek authority informed their German counterpart that they would not accept the rejection and submitted the request again. They reasoned that the BAMF had promised that the request would be reexamined as soon as the required documents arrived in their letter from 18th January 2018.
In November 2018 the applicants filed a complaint at the Administrative Court of Berlin claiming that the BAMF should acknowledge to be competent for their asylum requests.
Decision & reasoning:
The complaint at the Administrative Court of Berlin was successful.
The applicants are authorized to file a complaint because Articles 9 and 17 II Dublin-III regulation grant them individual, subjective rights. Although Art. 27 Dublin-III regulation only grants a right to an effective remedy against a transfer decision, the provision does not preclude a higher national standard of legal remedies. Also Art. 47 CFREU requires effective legal remedies.
Germany is responsible for examining the applications of applicants 1 and 2 under Art. 9 Dublin-III regulation. All requirements of the provision are met: They are the parents of the underage applicant 4 and thus family members under Art. 2 (g) Dublin-III regulation. Applicant 4 was granted subsidiary protection status in Germany. All applicants have expressed their wish to be reunited in writing.
The responsibility of Germany did not cease because of an expiry of a deadline. The Greek authorities met the three-month-deadline of Art. 21 I, 20 II Dublin-III regulation when first filing a take charge request.
The responsibility of Germany did also not cease because of other reasons. The Greek authorities protested against Germanys rejection to take charge of the applicants. Under Art. 5 II Dublin-III Implementing regulation the requesting member state may ask for its request to be reexamined where it has additional evidence to put forward. This option must be exercised within three weeks following the receipt of the negative reply. The Greek authorities sent the Holding letter within this period of time. However, the requested documents arrived after the deadline had already expired.
The Administrative Court reasoned that the question, if the Holding letter or the requested documents were the relevant factor for the deadline, is irrelevant because the BAMF replied only more than half a year later. This was too late, considering that Art. 5 II Dublin-III Implementing regulation sets a time limit for the reply of two weeks.
The Court turns to the case law of the CJEU, which states that the responsibility of a member state passes to the requesting member state after the two-week deadline has expired. But the Administrative Court Berlin examines that this case law of the CJEU only applies in situations where the applicants benefit from an expiry of a deadline. But the situation in the present case, which is also called “Dublin reversed”, is different: The expiry of a deadline would work to the detriment of the applicants, making the family reunification impossible. This is not intended by the Dublin regime. It is not a mere arrangement to allocate the responsibility of the member states for asylum requests but also serves the interests of the applicants, granting them individual, subjective rights. It follows from the human right to be reunited as a family in Art. 7 CFREU and Art. 8 ECHR that the mere expiry of a deadline cannot lead to a refusal of a reunion. Another argument for this view is that otherwise authorities of the requested member state would be able to reject their responsibility by simply not respecting the two-week deadline for reply.
Thus, the high importance of family unity and the great good of children’s well-being indicate that the requested member state is required to examine the asylum requests even if a deadline has already expired
The Administrative Court goes on that applicants 1 and 2 can also claim Germany’s responsibility under the discretionary clause of Art. 17 II Dublin-III regulation. Looking at recital 17 of the Dublin-III regulation it states that the member states are able to derogate from the responsibility criteria in particular on humanitarian and compassionate grounds, in order to bring together family members. In the present case these humanitarian grounds can be confirmed because of the close family links of the applicants.
Looking at applicant 3 the Court also states that Germany is responsible under Art. 17 II Dublin-III regulation. Because of the particular circumstances of her case, applicant 3 can require Germany to make use of the discretionary clause. The severe violence that she has suffered in Syria constitutes a particular case of hardship that does not make it acceptable for her to stay in a Greek refugee camp without her family. She is only 23 years old, has always lived together with her parents and did not yet found her own family.
Outcome:
Application granted.
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Cited National Legislation:
| Cited National Legislation |
| 52 |
| 123 |
| Germany– Administrative Procedure Code (VwGO) - §§ 42 |
Cited Cases:
| Cited Cases |
| CJEU - Case C-360/16, Hasan |
| CJEU - C-578-16, C. K. and Others, 16 February 2017 |
| CJEU - C 670/16, Mengesteab, 26 July 2017 |
| CJEU - C‑47/17 and C‑48/17, X & X |
Other sources:
Domestic Case Law Cited
Germany – Federal Constitutional Court (BVerfG), 17.01.2017, 2 BvR 2013/16
Germany – Federal Administrative Court (BVerw), 27.06.1984, BVerwG 1 ER 310.84
Germany – Higher Administrative Court Bavaria (VGH Bayern), 03.12.2015, 13a B 15.50124
Germany – Higher Administrative Court Lower Saxony (OVG Niedersachsen), 15.11.2016, 8 LB 92/15
Germany – Administrative Court Berlin (VG Berlin), 23.11.2017, VG 23 L 836.17 A
Germany – Administrative Court Berlin (VG Berlin), 02.01.2018, VG 23 L 905.17 A
Germany – Administrative Court Düsseldorf (VG Düsseldorf), 21.02.2018, 22 L 442/18.A
Germany – Administrative Court Freiburg (VG Freiburg), 08.05.2018, A 4 K 11125/17
Germany – Administrative Court Halle (VG Halle (Saale)), 12.07.2018, 7 B 125/18 HAL
Germany – Administrative Court Minden (VG Minden), 05.06.2015, 6 K 182/15.A
Germany – Administrative Court Münster (VG Münster), 20.12.2018, 2 L 989/18.A
Germany – Administrative Court Wiesbaden (VG Wiesbaden), 09.03.2018, 4 L 444/18.WI.A
Germany – Administrative Court Würzburg (VG Würzburg), 02.11.2017, W 2 E 17.50674