Germany - Federal Administrative Court, 1 C 26.14, 17 September 2015

Facts:

In October 2013 the Applicant, a citizen of Pakistan, entered Germany and applied for asylum. He alleged to the Federal Office for Migration and Refugees (the “Federal Office”) that he had initially arrived in Italy by ship in September 2013 and had subsequently made his way to Germany.

The Federal Office requested that Italy takes charge of the application on the basis of Art. 10(1) of the Regulation (EC) No. 343/2003 (the “Dublin II Regulation”). The competent Italian authorities did not respond to the request and the Federal Office subsequently informed the Italian Home Office that it deemed the request accepted.

In a decision dated 12 March 2014, the Federal Office ruled that the application for asylum was inadmissible and ordered the Applicant’s deportation to Italy in accordance with Sec. 34a(1) sentence 1 of the Asylum Procedure Act (Asylverfahrensgesetz). A subsequent application to the Administrative Court for preliminary injunctive relief was denied and an appeal of the Federal Office’s ruling was dismissed.

The Applicant appealed to the Court of Appeal which denied the appeal with regard to the decision on admissibility of the application, which then became final and conclusive. The Court of Appeal also denied the Applicant’s appeal with regard to the deportation order based on the grounds that the Applicant’s deportation order under Sec. 34a of the Asylum Procedure Act was compatible with European Union law, and therefore compatible with the Dublin Regulations.

The Applicant appealed again to the Federal Administrative Court (the “Court”) regarding the deportation order. The Applicant challenged the Court of Appeal’s interpretation of the law and claimed it would result in a violation of the principle of proportionality in Germany’s national law and in EU law on the basis that transferring an asylum Applicant only serves the purpose of enforcing a responsibility provision and it is therefore disproportionate to provide only a compulsory deportation order in circumstances where the Applicant has requested the transfer of his own volition. 

Decision & reasoning:

The Court first examined the ability of the Federal Office to deport the Applicant. According to the Court, Sec. 34a(1) of the Asylum Procedure Act (Asylgesetz), allows the Federal Office to order the deportation of asylum seekers to the first Member State responsible for reviewing the asylum application as soon as it has been ascertained that the deportation can be carried out. In holding that Sec. 34a(1) of the Asylum Procedure Act is not only compatible with the terms of the Dublin II Regulation, but also with the regulation (EC) No 1560/2003 (the “Dublin Implementing Regulation”) and the regulation (EC) No 604/2013 (“Dublin III Regulation”) (together the “Dublin Regulations”), the Court found that the Applicant’s deportation to Italy met the requirements under that section.

The Court stated that the three transfer procedures provided for in the Dublin Regulations (transfer at the initiative of the asylum seeker, supervised departure to the point of embarkation or escorted transfer until handing over to the authorities) do not establish an order of priority. In particular, the Court noted that priority cannot be derived from the notification obligations in the Dublin Regulations that apply in the event of transfer at an Applicant’s own initiative. According to the Court, the requesting Member State is the competent authority to establish such priority.

The Court held that an obligation to permit an asylum seeker to be transferred without administrative compulsion cannot be inferred from Directive 2008/115/EC (the “Return Directive”) because the Dublin Regulations prevail as leges speciales with regard to the procedures for a transfer. The Court reasoned that, contrary to the Return Directive, which governs the return of third country nationals staying illegally in the relevant country, the Dublin Regulations serve the purpose of establishing a supervised procedure for transferring asylum Applicants to the authorities of the responsible Member State. It continued that if a transfer is not carried out on time, the responsibility for the asylum application is transferred to the transmitting Member State. However, according to the Court the transfer of responsibility under the Dublin regulations cannot be established by the voluntary transfer within the Return Directive. Therefore, the Court found that the institution of voluntary transfer is not part of the Dublin Regulations because they only determine a transfer under government supervision even where a transfer is carried out at the asylum Applicant’s initiative.

The Court found that Sec. 34a of the Asylum Procedure Act (Asylgesetz) is consistent with the principle of proportionality under EU law. According to the Court, under this principle fundamental rights may only be limited if the limitation serves the general interest and is required. The Court noted that the objective of Sec. 34a of the Asylum Procedure Act (Asylgesetz) is to ensure a transfer in compliance with the terms of the Dublin Regulations which is considered to be an objective of general interest.

The Court found that the German legislature was allowed to take the view that administrative compulsion (Verwaltungszwang) is generally required.

It further found that the Dublin Regulations’ rules-and-exceptions system favouring officially supervised transfer was also implemented in other states participating in the Dublin Regulations. The Court stated that it must be ensured that the asylum seeker subject to transfer arrives at his destination, which is why voluntary return can only be used if there is no reason to believe that it will jeopardise the return procedure. However, the Court found that the initiative for a voluntary return must come from the asylum Applicant himself and the Applicant is responsible, to raise the financial resources for the journey.

The Court further stated that the appointment of state authorities to enforce the transfer decision cannot be challenged because of Germany’s federal structure and the obligation of state authorities to comply with national law.

However, the Court noted that state authorities must take the principle of proportionality into account when reviewing the circumstances of the specific case and consider voluntary transfer as an exception to administrative compulsion. The Court stated that, if after a review of the circumstances of the specific case, state authorities conclude that a timely transfer can be assured if the person organises the transfer themselves, the responsible foreign authority must allow such transfer. The Court held that this is required not only because direct compulsion interferes with personal freedom but also because the ban on re-entry (Einreisesperre) only applies in cases of executed deportations (zwangsweise Abschiebung) under Sec. 11 of the Residence Act (Aufenthaltsgesetz).

The Court further stated that the obligation to choose the least rigorous measure (voluntary transfer) results not only from the principle of proportionality under EU law, but also from the application of national law. The Court noted that German law authorities must apply the measure that is least likely to interfere with the individual concerned and the community. If several measures for averting a threat are considered, the person concerned may request the application of other measures which are equally effective (“alternative measures”) if there is no greater adverse impact on the community. However, the initiative for choosing another measure must be requested by the individual concerned. The Court also found that allowing the Applicant the opportunity of a voluntary transfer also meets the Dublin Regulations objective of transparency.

The Court then found that the deportation order was not invalidated by the absence of instructions regarding the possibility of applying for a transfer without administrative compulsion. It reasoned that even though Art. 19(2) sentence 2 of the Dublin II Regulation states that the competent authority must ‘if necessary, state information on the place and date at which the Applicant should appear, if he is travelling to the responsible Member State by his own means’ it is evident from the very wording (‘if necessary’) that such information only needs to be provided if the asylum Applicant has been granted the option of a transfer on his own initiative. The Court concluded that the competent authority for the granting of such option was the foreign authority and therefore the question was set aside as the underlying decision concerned the order of the Federal Office.

Finally the Court stated that the requirement for deportation under Sec. 34a(1) of the Asylum Procedure Act (Asylgesetz) was met because it was possible to carry out the challenged deportation order on the relevant date since the transfer period had not yet expired, as the Federal Office requested Italy to take charge not because of an application process in Italy but as a consequence of an illegal crossing of the borders. Therefore, the relevant period in which the transfer had to take place was two months as opposed to two weeks.

Outcome:

The Applicant’s appeal was rejected and the suspension of the deportation order denied. 

Observations/comments:

Administrative Court of Stuttgart, Urteil dated 05/05/2014 – VG A 4 K 1410/14 (Trial court)

High Administrative Court of Mannheim, Urteil dated 27/08/2014 – VGH A 11 S 1285/14 (Court of appeal)

This case summary was written by Linklaters LLP. This case summary was proof read by Language Connect.