Germany - Federal Administrative Court, 1 C 10.15, 22 March 2016

Facts:

The Applicants, Iranian nationals, entered Germany in May 2011. Their passports indicated that their Schengen visa had been granted by Spain. The Applicants applied for asylum in Germany arguing that they were being persecuted in Iran for their political opinion.

On 27 May 2011, the German Federal Office for Migration and Refugees (“Federal Office”) requested Spain to take charge of the Applicants in accordance with the Dublin II Regulation. On 13 June 2011, the Spanish authorities declared they were responsible to examine the applications as per Art. 9 Paragraph 2 of the Dublin II Regulation. Thereupon, the Federal Office decided on 17 June 2011 that the Applicants’ applications were inadmissible and ordered their deportation to Spain.

Subsequently, the applicants revoked their applications for asylum under Article 16a (1) of the Basic Law and for granting refugee status under Section 60 (1) of the Residence Act on 28 June 2011 and limited their applications to subsidiary protection.

The Federal Office then closed the asylum proceedings by its decision dated 30 June 2011 whilst upholding the deportation order to Spain.

The Administrative Court Ansbach granted interim judicial relief and annulled the deportation order by its decision of 16 May 2012. It argued that due to the Applicants’ revocation of the applications for asylum ex tunc, Spain’s responsibility to examine the applications had ceased to apply with retrospective effect. This is due to the fact that the Dublin II Regulation only applied to applications for asylum and not to requests for subsidiary protection.

Upon appeal by the Federal Office, the Higher Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof) (“VGH”) amended the judgement of the Administrative Court Ansbach and dismissed the case by its decision of 21 May 2015. According to the VGH, in the present case the responsibility of Spain to examine the application was established with its consent to the request to take charge, regardless of the question of whether the term ‘application for asylum’ under the Dublin II Regulation only referred to applications for refugee status or also to applications for subsidiary protection. This responsibility remained unchanged by the later revocation of the applications. According to the VGH, Spain’s consent to take charge of the Applicants had a constitutive effect of ascertaining Spain’s responsibility. Thus, the consent terminates the procedure to determine the Member State responsible to examine the application for international protection, such determination being the main objective of the Dublin II Regulation which is thereby achieved.

The VGH further reasoned that the Applicants had no right to contest Spain’s responsibility. The VGH cited the case law of the European Court of Justice (“CJEU”) (decision dated 10 December 2013 – C-394/12 – Abdullahi) according to which the Applicants only had a right to contest the responsibility of a Member State based on a claim that the asylum system in that Member State suffered from systemic flaws which exposed the applicant to the risk of inhuman or degrading treatment within the meaning of Art. 4 of the Charter of Fundamental Rights of the European Union (“CFR”).

The Applicants appealed the VGH’s decision to the Federal Administrative Court (the “Court”). They argued that the VGH had violated the applicable law because it failed to interpret Sec. 27a German Asylum Procedure Act (Asylverfahrensgesetz – AsylVfG, now Section 27a Asylum Act (Asylgesetz)) in accordance with EU law in general, and in particular with the Dublin II Regulation.

The Applicants argued that the Dublin II Regulation had ceased to apply at the time they had revoked their applications for asylum. In their view, this followed from the definition of “application for asylum” in Art. 2 lit. (c) of the Dublin II Regulation. According to the definition, the Dublin II Regulation only applies to applications for refugee status and not those for subsidiary protection under EU law. Therefore, the Dublin II Regulation was not applicable to the request to grant subsidiary protection. 

Decision & reasoning:

The Court rejected the Applicants’ appeal. It upheld the deportation order and stated that the Applicants’ rights had not been violated.

The Court, while relying on settled case law, explained that it had to take into account changes in legislation that came into effect after the appeal decision. In this case, this  included the recent changes to the Asylum Act under the act for the acceleration of asylum procedures and the act for the facilitation/simplification of the expulsion of criminal foreign nationals and the extended exclusion of refugee status of criminal asylum seekers (both passed in March 2016). Furthermore, the Court confirmed the VGH’s view that Sec. 34a, 27a of the Asylum Act (AsylG) were the correct legal basis for the deportation order.

In this context, the Court also stated that according to Sec. 27a of the Asylum Act (AsylG), an applicant can be deported to the Member State responsible to conduct the asylum proceedings (the question of responsibility being governed by the Dublin II Regulation because the applications had been made before 1 January 2014). Furthermore, the applicants do not have the right to have their applications for asylum under the Dublin II Regulation examined by a certain Member State.  

The Court ruled that according to the rules of the Dublin II Regulation, Spain was the Member State originally responsible for examining the Applicants’ applications. Moreover, this responsibility has not been transferred to Germany based on the fact that the applicants revoked their applications and limited their requests to one of subsidiary protection, respectively.

According to the Court, Spain (which had granted the Schengen visa to the Applicants) was responsible pursuant to Art. 9 Paragraph 2 Dublin II Regulation which states that where an applicant is in possession of a valid visa, the Member State which issued that visa shall be responsible for examining the application.

The Court then explained that the responsibility has also not been subsequently transferred to Germany. Firstly such transfer did not occur because the Federal Office had failed to deport the Applicants within the 6-month period set out in Art. 19 Paragraph 3 of the Dublin II Regulation. Under this provision, a transfer of responsibility occurs if the applicant is not deported within 6 months of the other Member State’s acceptance of the request to take charge; or with the decision on an appeal or review where there is a suspensive effect. According to the Court, “decision on an appeal” refers to the decision with which the court decides on the legality of the proceedings and thus can no longer prevent the implementation of the transfer decision. If the suspensive effect of the appeal is granted, like in the case at hand, the time limit for the transfer begins to run with the final decision on the appeal.

Secondly, the responsibility has also not been transferred because the applicants revoked their applications for asylum. The Court reasoned as follows:

·         The Court first agreed with the Applicants’ view that the term “application for asylum” in Art. 2 lit. (c) Dublin II Regulation did not include requests for subsidiary protection. The concept of subsidiary protection was only introduced to EU asylum law by means of Directive 2004/83/EC of 29 April 2004 (“Qualification Directive”) and thus after the adoption of the Dublin II Regulation.

·         At the time of the revocation of the asylum applications on 28 June 2011, Spain had already accepted Germany’s request to take charge of the Applicants, and thus the Dublin II procedure to determine the Member State responsibility had already been finally concluded.   

·         The Court provided, among others, the following arguments for its ruling that Spain’s acceptance of responsibility remained constitutive / relevant for the applicability of the Dublin II Regulation even after the revocation of the asylum applications:

·         It explained that the Dublin II Regulation effectively made the question of responsibility dependant on an act of the Member State either by the Member State where the application has been lodged refraining from initiating the procedure to take charge (based on deemed own responsibility or the invocation of the sovereignty clause under Article 3 (2) of the Dublin II Regulation) or by the acceptance of the Member State which has been requested to take charge. To the Court this seemed to be an argument, that an action taken by a Member State needed to be respected as conclusive for the question of responsibility under the Dublin II procedure.

·         The Court further argued that this view is backed by the fiction of consent to take charge under Art. 18 Paragraph 7 of the Dublin II Regulation which establishes the responsibility of a Member State, even where the prerequisites for the criteria under Chapter III of the Dublin II Regulation are not met.

·         The Court in particular based its view on the CJEU’s Kastrati decision (3 Mai 2012 - C-620/10 - Kastrati). According to the Court, this decision resolved the question of whether the Dublin II Regulation continues to apply after an application for asylum has been revoked. Accordingly, the Dublin II Regulation is no longer applicable where the application for asylum is revoked before the Member State responsible to examine the application has accepted the request to take charge of the applicant. The Court reiterated the CJEU’s reasoning that the main objective  of the Dublin II Regulation, i.e. to determine the Member State responsible for the examination of the asylum application, could no longer be reached. Furthermore, it supported the VGH’s view to conclude from this reasoning of the CJEU that the Dublin II Regulation continues to apply in cases where the application is revoked after the Member State has declared to accept responsibility.   

The Court while citing one of its previous decisions, stated that the Dublin II Regulation did not grant an applicant an individual right to have her application reviewed by a certain Member State. In this context, and in line with the VGH’s decision the Court referred to the case law of the CJEU (10 December 2013 – C-394/12 – Abdullahi). In this decision, the CJEU had decided that in a situation like the one at hand where a Member State had accepted responsibility, the applicant may only contest the deporting Member State’s decision not to review the application on the basis that the accepting Member State’s asylum system suffered from systemic deficiencies that exposed the applicant to the risk of inhuman or degrading treatment within the meaning of Art. 4 of the CFR. 

Outcome:

The Court rejected the Applicant’s appeal. 

Observations/comments:

The ruling of the Court mainly relies on the CJEU’s Kastrati decision. However, the particular emphasis of the Court on the implications of the actions and decisions taken by a Member State during the Dublin II proceeding for the time at which the proceeding is deemed to be terminated, seems noteworthy..

Administrative Court (“Verwaltungsgericht”) of Ansbach, Urteil dated 16 May 2012 – VG AN 3 K 11.30419 (Court of Appeal). Administrative Court of Ansbach granted the Applicants interim judicial relief regarding the deportation order.

Higher Administrative Court of the State of Bavaria(BayerischerVerwaltungsgerichtshof), Urteil dated 21 May 2015 – VGH 14 B 12.30323. Higher Administrative Court of the State of Bavaria changed the Court of Appeal’s decision and dismissed the Applicants’ claim to annul the deportation order holding that the order was legitimate.

This case summary was written by Linklaters LLP and proof read by Ann-Christin Bolter, an LLM graduate in Human Rights Law at Queen Mary's University, London.