Germany - Federal Administrative Court, 1 C 22.15, 27 April 2016

Facts:

The Applicant, a Syrian national, was picked up by the Frankfurt police in September 2014. He filed an application for asylum in Germany on 29 October 2015. A hitin the Eurodac databaserevealed that he had already filed an application for international protection in Italy on 4 September 2014. Subsequently, the German Federal Office for Migration and Refugees (“Federal Office”) requested Italyto take the applicant back . The competent Italian authorities did not respond to the request.

By decision of 30 January 2015, the Federal Office ruled that the application for asylum was inadmissible on the basis of Italy being responsible for examining the application(;) and therefore ordered the Applicant’s deportation to Italy.

The Applicant appealed this decision to the Court of Appeal (Administrative Court of Trier) and simultaneously filed a request for the appeal to have suspensive effect. He based his appeal and the request for suspensive effect on the fact that Italy’s asylum procedures and reception conditions showed systemic flaws.

The Court of Appeal denied the request for the appeal to have suspensive effect by its decision dated 12 March 2015 and denied the appeal by its decision dated 30 June 2015. The Applicant was subsequently deported to Italy on 3 August 2015. In mid-August 2015, he re-entered Germany illegally.

The Applicant then further appealed to the Higher Administrative Court of Koblenz (“OVG Koblenz”) which on 3 November 2015 granted the appeal. It reasoned that the responsibility to examine the application for international protection had been transferred to Germany according to Art. 29(2) of the Dublin-III-VO because the Applicant had not been transferred to Italy within the 6-month period envisaged in Art. 29 Paragraph 1 Dublin-III-Regulation. This time limit, in the view of the court, had started to run on 26 November 2014 (with Italy’s deemed acceptance of the request to take back the applicant.)

The Federal Office appealed the decision of the OVG Koblenz. It argued that the transfer of the applicant took place within the time limit of six months because the time limit only started at the time when the Applicant’s request for his appeal to have suspensive effect was denied by the Court of Appeal (i.e. on 12 March 2015). 

On appeal, the Court suspended the proceedings and submitted a request for a preliminary ruling to the CJEU pursuant to Art. 267 TFEU. The questions referred to the CJEU concerned the interpretation of Chapter VI of the Dublin-III-Regulation with regards to a request to take back an applicant and the responsibility to examine an application for international protection in the case where the applicant illegally re-entered a Member State, after he had been transferred to another Member State. In the Court’s view, a decision on these questions was necessary to enable the Court to give judgment and thus required a clarification by the CJEU. 

Decision & reasoning:

The Court first explained that, in line with the settled case law, it has to take into account changes in legislation that came into effect after the appeal decision. This included the recent 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 on the extended exclusion of refugee status of criminal asylum seekers (both passed in March 2016).

The Court then went on to explain that the OVG Koblenz had rightly assumed that Italy was the Member State originally responsible, based on the rules under Chapters II and III of the Dublin-III-Regulation (in particular Art. 3, 7 and 13). According to the Court, the responsibility could, in principal, then have been transferred to Germany either according to Art. 3 Paragraph 2 (because of systemic flaws in Italy’s asylum system) or under Art. 23 and 24 of the Dublin-III-Regulation. The court held that it was not in a position to conclusively assess Italy’s original responsibility to examine the application for international protection, since the OVG Koblenz did not provide for binding findings on the facts in its decision and thus left the question unanswered, whether the asylum procedure and the reception conditions in Italy indeed suffered from systemic flaws. Therefore, the Court assumed that it had to decide the case on basis of Sections 27a,34a and 77 of the Asylum Act (AsylG) and Articles 23 and 24 of the Dublin-III-Regulation.

Thus, certain questions regarding the relevant provisions of the Dublin-III-Regulation required clarification by the CJEU on which the Court considered a decision on to be necessary to enable it to give judgment.

Contrary to the view of the OVG Koblenz, the question, whether Italy or Germany was responsible to examine the application for international protection according to Article 3(2) of the Dublin-III-Regulation could not be left open because the responsibility was, in any case, transferred to Germany according to Article 29(2) of the Dublin-III-Regulation.  According to the Court, the applicant has been transferred to Italy within the time limit based on its correct calculation because:

·         Art. 29 (1) sets out two alternative starting points for the 6-month period, i.e. the (deemed) acceptance of the request to take charge or to take back the person concerned by other Member State, and the final decision on an appeal or review where there is a suspensive effect

·         when applying Art. 29 of the Dublin-III-Regulation, Member States have to be granted the full period of the time limit to carry out the transfer (citing CJEU case law);

·         therefore, with respect to the second alternative set out above, the 6-month period shall not start before it is clear that the deportation can actually be executed (while the process and modalities of the transfer may still be open). This will only be the case once a final decision on the lawfulness of the proceedings has been rendered;

·         once the second alternative becomes applicable, i.e. when an applicant has filed an appeal against a transfer decision and has lodged a request for the appeal to have suspensive effect in due time, and  the 6-month period that started at the time of the acceptance of the request to take back or to take charge  by the other Member State has not expired, the time of the final decision on the appeal will be decisive to determine when the 6-month period starts. The time of the (deemed) acceptance by another Member State (in this case: Italy) is no longer relevant.

The Court concluded therefore that, in this case, the initial 6-month period was suspended by the request for the appeal to have suspensive effect and had begun to re-run on 12 March 2015 when the request was denied by decision of the administrative court and, consequently, had not expired when the Applicant was deported to Italy on 3 August 2015.

According to the Court’s reasoning above, the responsibility for examining the Applicant’s application had not been transferred to Germany (based on Art. 29 of the Dublin-III-Regulation). The question of whether such transfer has occurred by effect of Art. 23 or 24 of the Dublin-III-Regulation was decisive in the present case. In this context, the Court formulated the following questions to be answered by the CJEU. With regards to some of the questions, the Court also indicated its own legal opinion:

Question 1: In a case where an applicant, after he has lodged a second application for asylum in another Member State (in this case: Germany), is deported to the Member State that was initially responsible for examining the application (in this case: Italy) after his request to suspend the transfer decision under the Dublin-III-Regulation has been denied by a Court in the other Member State (in this case: Germanyand immediately illegally returned to the second Member State (in this case: Germany):

a.     According to the principles of the Dublin-III-Regulation, which is the relevant point in time for the judicial review of a transfer decision: Is it the time of the previous deportation, because in the case of a deportation in compliance with the applicable deadlines the question of responsibility has been finally determined (i.e. the responsibility has finally been transferred) and the rules governing the responsibility under the Dublin-III-Regulation are no longer relevant with respect to further developments? Or will further developments which are in general relevant under the Dublin-III-Regulation, e.g. the end of the deadlines to take the person concerned back or a (further) transfer, continue to be relevant? 

This question aims at clarifying, whether for the judicial review of a transfer decision, and deviating from the national provision of Section 77 (1) Sentence 1 of the Asylum Act (AsylG), according to which the relevant point in time is the one of the last oral hearing/of the decision, the relevant point in time under EU law is the one of a transfer that is carried out in due time. The Court stated that in its view, while the Dublin-III-Regulation does not specifically address the question, there seem to be good arguments for the approach that in the case where an applicant has been deported to the Member State, which was originally responsible for the examination of the application, within the applicable deadline, the question of responsibility would have been finally settled and the provisions of the Dublin-III-Regulation, especially those regarding the procedures for taking back, are no longer applicable with regards to subsequently arising facts, like the illegal re-entry of the asylum seeker Thus, Article 23 and 24 of the Dublin-III-Regulation could only  be applied by analogy.  However, the Court expressed its concern with regards to such analogy in cases like the one at hand since it might induce the asylum seeker to re-enter his/her favoured Member State despite the transfer. This would contradict the aim of the Dublin-III-Regulation to prevent secondary movements by establishing common asylum procedures.

b.    If the answer to question 1a is the responsibility among the Member States is finally settled once an applicant has been transferred in due time, it needs to be   clarified, whether the transfer decision once taken can serve as a basis for further transfers to the responsible Member State (in this case: Italy) and whether it remains obligated to take the applicant back, can the Member State that had made the request to take back (in this case: Germany) deport the applicant based on the previous deportation order? Further,does the other Member State (in this case: Italy) continue to be obliged to take back the applicant?

Possible legal basis for the persisting obligation of the originally responsible Member State to take charge or to take back could be Article 18(1) of the Dublin-III-Regulation and Article 6 of Directive (EC) No. 115/2008 of 16 December 2008 (Return Directive). In case the CJEU finds that neither of these apply, the Court considered the application of the readmission agreement between Germany and Italy of 29 March 1991 regarding persons residing without authorisation.

Question 2: If the responsibility has not been finally settled:

a.     Is Art. 23 of the Dublin-III-Regulation (which deals with  requests to take back when a new application has been lodged in the requesting Member State) to be applied (by way of analogy) with the consequence that the responsibility can be transferred under Article 23 (2) and (3) Dublin-III-Regulation if a further request to take back is not filed in due time, or

b.    Is Art. 24 of the Dublin-III-Regulation (which deals with procedures to take back where no new application has been lodged in the requesting Member State) to be applied (by way of analogy) with the consequence that the responsibility can be transferred under article 24 (2) and (3) of the Dublin-III-Regulation

c.     Or do none of them apply?

Question 3: If neither Art. 23 nor 24 of the Dublin-III-Regulation applies (by way of analogy) (see question 2c above), can an applicant be (re-)deported to the originally responsible Member State (in this case: Italy) based on the previous and contested deportation order until his appeal (to contest the deportation order) has been finally decided on and does this Member State remain responsible to take the applicant back independently from further requests to take back, without respecting the time limits under Article 23(3) or Article 24(2) of the Dublin-III-Regulation and independently from the time limits for the transfer under Article 29 (1) and (2) of the Dublin-III-Regulation.

Question 4: In case Art. 23 of the Dublin-III-Regulation is applicable (by way of analogy) (see question 2b above): is the renewed request to take back subject to a new time limit under Article 23 (2) of the Dublin-III-Regulation? In case Paragraph 2 applies, what will be the relevant time for the deadline to start to run: will this be when the competent authorities become aware of the illegal return or will it be another event.

The Court stated that in its view, the knowledge of the competent authority (in this case: the Federal Office) should be the relevant factor.

Question 5: In case Art. 24 of the Dublin-III-Regulation is applicable (by way of analogy) and the other Member State (in this case: Germany) has to initiate a new request to take back (see question 2b above):

a.     As in question 4,does the deadline in Art. 24 Paragraph 2 of the Dublin-III-Regulation apply (by way of analogy) to this renewed request? In case Paragraph 2 applies, what will be the relevant time for the deadline to start to run: will this be when the competent authority becomes aware of the illegal return or will it be another event?

b.    If the deadline in Paragraph 2 applies and has expired, does a new application for asylum by an applicant according to Art. 24 Paragraph 3 of the Dublin-III-Regulation directly lead to the other Member State (in this case: Germany) being responsible for the examination of the application or can the Member State still request the originally responsible Member State (in this case: Italy) to take the applicant back without being subject to the time limit or deport the applicant to that Member State without a new request to take back?

The Court emphasised that unlike Article 24(3) of the Dublin-III-Regulation, Article 23 does not expressly foresee an automatic transfer of the responsibility, but provides that the foreign national has to be granted the opportunity to lodge a new application. According to the Court one could take the view that a transfer of responsibility occurs under Art. 24 when the new application is filed. However, if one were not to take that view, it may be consequential to say that the relevant Member State (in this case: Germany) may issue a request to take back without being bound by the time limit under Article 24 (2) of the Dublin-III-Regulation or deport the applicant to that Member State

c.     If Art. 24 (2) of the Dublin-III-Regulation applies (by way of analogy) and the other Member State (in this case: Germany) lets the time limit expire is the lis pendens of an application for asylum which was lodged in another Member State (in this case: Germany) be equated with the lodging of a new application under Article 24(3) of the Dublin-III-Regulation?:

If the answer to question 5c is to the negative, i.e. the deadline under Art. 24 (2) of the Dublin-III-Regulation (applicable by way of analogy), has expired and neithera new application has  been filed by the applicant and nor the lis pendens of an application for asylum which was lodged in another Member State before the transfer can be equated with the lodging of a new application under Art. 24(3) of the Dublin-III-Regulation: may the other Member State (in this case: Germany)  request the Member State originally responsible to take back the applicant without being bound by the time limit under Article 24(2) of the Dublin-III-Regulation or deport the applicant to that Member State? 

Outcome:

The Court suspended its decision on the appeal and submitted a request for preliminary  ruling to the CJEU pursuant to Art. 267 TFEU. The official reference to the Court (Case C-360/16) can be found here. 

Subsequent proceedings:

Proceeding under Art. 267 TFEU. 

Observations/comments:

While the Court did not finally decide the matter, the decision expresses a clear view (and, in fact, a ruling) on how to calculate the 6-month period under Art. 29 Paragraph 2 of the Dublin-III-Regulation. This view is in line with the senate’s reasoning on the respective period applicable under the Dublin-II-Regulation (see BVerwG 1 C 10.15, recital (Randnummer) 16). The decision further provides some guidelines with respect to the Court’s view on how to deal with cases where an applicant illegally re-enters Germany after having been deported in accordance with the DublinIII-Regulation and applicable German law.

Administrative Court(“Verwaltungsgericht”) of Trier, Urteil dated 30 June 2015 – VG 1 K 473/15 TR (Trial court). The court denied the appeal of the Applicant.

High Administrative Court (“Oberverwaltungsgericht”)of Koblenz, Beschluss dated 03 October 2015 – OVG 1 A 10805/15 (Court of appeal). The court granted the appeal of the Applicant.

This case summary was written by Linklaters LLP. 

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

Other sources:

Art. 2 (1) of Agreement on the readmission of persons residing without authorisation from 29 March 1991 between Germany and Italy