Germany – Federal Administrative Court, 11 July 2018, BVerwG 1 C 18.17

Facts:

The plaintiff was born in Afghanistan in 1994 and travelled to Germany in 2014, where she filed an application for asylum at the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) on 22 October 2014. Although a hearing was held to determine the member state responsible for the asylum procedure, no further hearing was held and the Federal Office failed to decide on the asylum application.

On 11 August 2016, the plaintiff filed an action for failure to act with the aim of obliging the Federal Office for Migration and Refugees to continue the proceedings and to adjudicate on the application. In the first instance, the action was dismissed as inadmissible. The court was of the opinion that it could make a final decision on the matter even without a prior official hearing, as a result of which the plaintiff lacked the necessary need for legal protection.

The Administrative Court upheld the plaintiff's appeal. In contrast to the first instance, the second instance court argues that the opinion of the Federal Administrative Court "to decide in the matter without exception" after the proceedings under asylum law and in view of the developments in asylum law under European law is meanwhile outdated. With the appeal, the respondent asserts the plaintiff's lack of need for legal protection, since in her opinion the decision on the application merely pursues an obligation of the respondent that already exists by virtue of law. Rather, an action must be directed at a judicial claim that goes beyond the already existing legal obligation.

Decision & reasoning:

The Federal Administrative Court explains that the existence of a sufficient reason for the delayed decision must be assessed on the basis of objective criteria. Among the variety of noteworthy reasons which must be consistent with the legal order is the particular urgency of the matter for the plaintiff. In view of the fact that no decision had been made for 28 months and that the respondent lacked sufficient grounds, the Federal Administrative Court confirms the assessment of the second instance court. In addition, the court states that, according to Art. 23 para. 2 subpara. 2b of Directive 2005/85/EC, Art. 31 para. 6 of Directive 2013/32/EU, § 24 para. 4 AsylG, the legislator considers a period of six months to be the appropriate duration of the official proceedings within the meaning of § 75 sentence 1 VwGO. In future, Art. 31(3) to (5) of Directive 2013/32/EU is intended to provide guidance as to when exceeding the six-month period can also be accepted as objectively justified for the application of § 75 sentence 1 of the VwGO.

If the authority fails to act, as a rule there is only a need for legal protection for the action for failure to act directed against it. According to the Federal Administrative Court, a special need for legal protection, which exists in the present case, is required for the limitation to an action for failure to act on an administrative decision.

In the case of substantive rights to which a legally binding claim to official recognition exists if the prerequisites for the offence are met, the action for failure to act must in principle relate to a specific official decision on the merits of the case. In contrast to actions under § 88 SGG, a general limitation to an action based purely on an administrative decision is not recognized in actions for failure to act under § 75 VwGO, even with regard to the principle of the separation of powers. According to the Federal Administrative Court, § 113 (5) VwGO also presupposes that the action for failure to act is generally to be filed as an action for performance of duties and not purely as an action for an official decision. The provision expresses that judicial legal protection is basically directed at the decision on the merits. The Federal Administrative Court considers § 44a VwGO not applicable in the present case.

The plaintiff's need for legal protection arises from the fact that she was not heard on her grounds for asylum after her asylum application was filed and that the Federal Office did not take any other steps discernible from the administrative procedures involved to promote the proceedings in any way. The special design of the asylum procedure with the emphasized status of the official procedure and the associated procedural guarantees justifies in the overall view the assumption that there is a need for legal protection for a purely declaratory action.

According to the Federal Constitutional Court, any considerations regarding the violation of the principle of the separation of powers are irrelevant because of the decision bound in the present case. In addition, § 113 para. 3 VwGO applies directly only to actions for rescission and is not analogous because of the legal system. From § 113.5 VwGO follow cases in which a restriction of the judicial duty is recognized to make the case ready for a decision. In the present case, however, the Federal Office has neither discretionary scope nor a prerogative of assessment. The special expertise of the authority does not justify any limitation of the judicial duty to reach a decision. In this case, a limitation follows from the special features of the official asylum procedure and its specific procedural guarantees. According to the provisions of asylum law and Union law, refugee law is particularly dependent on careful procedural design. The possibility of communication and a personal hearing is decisive in order to overcome even insufficient evidence and misunderstandings. In doing so, the person listening must be specially trained in communication and be able to respond individually to age-, gender- and culture-specific peculiarities (Art. 13 para. 3 Directive 2005/85/EC). In addition, according to § 25 (6) sentence 1 AsylG, the hearing of the asylum applicant is not public. According to Article 14 (2) of Directive 2005/85/EC, timely access to information must enable effective legal remedies within the meaning of Article 19 (4) of the German Basic Law and Article 39 (1) of Directive 2005/85/EC to be lodged in due time.

Due to the particularities of procedural law, judicial proceedings cannot replace official hearings. The judicial procedure is based on the principle of publicity and is designed for transparent control of official decisions by the statutory judge. Due to the principle of the non-public nature of official proceedings, similar proceedings can only be conducted within the framework of § 171b GVG for the protection of the asylum seeker's privacy. The principle of the statutory judge under Article 101 para. 1 of the German Basic Law also prevents the individual sensitivities of the asylum seeker from being taken into consideration when determining the person to be heard. On the other hand, the extension of a hearing with the help of an interpreter is not an argument for the lack of substitutability of the official procedure. In addition, the principle of concentration of the administrative court in § 87 para. 1 VwGO and the limited procedural reviewability of the judicial decision are not compatible with the obligation to submit the report on the personal hearing in the proceedings in good time so that an appeal can be prepared and lodged within the meaning of Art. 14 para. 2 Directive 2005/85/EC. The stricter preclusion provisions of the court proceedings also stand in the way of substitutability. Although neither Article 19 (4) of the German Basic Law nor Article 39 (1) of Directive 2005/85/EC require an appeal against an administrative court decision in asylum proceedings, so that the German legislature was allowed to restrict the appeal with § 78 AsylG, the specific communication problems of the asylum proceedings mean that the asylum applicant has a special interest worthy of protection in the conduct of the first official proceedings and the associated possibility of judicial review. Art. 39 Directive 2005/85/EC and Art. 46 Directive 2013/32/EU also presuppose that an official procedure has taken place. The requirement under Union law for an effective legal remedy with comprehensive prior examination with regard to facts and legal questions cannot be derived from an obligation under Union law to make a final decision if an official examination has not yet been carried out. In the view of the court, the fact that the term "determining authority" also includes courts is not an indication of the equivalence of the hearing in court proceedings.

After all, a violation of federal law does not lie in the fact that the respondent was obliged to decide on the asylum application without being given a new deadline.

Outcome:

The respondent's appeal is dismissed.

Observations/comments:

This summary was written by Mario Kühn. He is a legal trainee in a law firm.

Other sources:

Kopp/Schenke, VwGO, 23. Edition 2017 § 75 Rn. 13;

Sodan/Ziekow, VwGO, 4. Edition 2014 § 75 Rn 47;

Schoch/Schneider/Bier, VwGO, June 2017, § 75 Rn. 8;

Göbel-Zimmermann/Skrzypczak, ZAR 2016, 357;

Kopp/Schenke, VwGO, 23. Edition. 2017 § 113 Rn. 166;

Jaber, ZAR 2017, 318;

Kopp/Schenke, VwGO, 23. Edition 2017 § 172 Rn. 5