Germany – Federal Administrative Court, 16 November 2015, 1 C 4.15

Facts:

The Complainant, an Iraqi National, entered Germany from Belgium in March 2010 and applied for asylum as a minor. Prior to this, he had already unsuccessfully filed two asylum applications, in Belgium and elsewhere.

After Belgium accepted a take back request, the German Federal Office for Migration and Refugees (Federal Office) declared the asylum application inadmissible because it found that international responsibility lies with another country under Section 27a of the Asylum Procedure Act and ordered the deportation to Belgium.

The Complainant brought an action against this decision and order. The Higher Administrative Court decided that in accordance to Article 5(2) of Regulation (EC) No.343/2003 –Dublin II Regulation – the Member State responsible for conducting the asylum proceedings is to be determined on the basis of the situation obtaining when the application was first lodged. The Court was in no doubt that the Complainant had still been a minor when he filed his application for asylum in Germany and stated that therefore Article 6 of the Regulation is applicable. According to Article 6(2), the Member State responsible is the one where the unaccompanied minor has lodged his application. In the case of multiple applications for asylum, according to the case law oft he CJEU, responsibility lies with the State where the minor is present after filing an asylum application there.

Decision & reasoning:

Firstly, the Federal Administrative Court confirmed the decision of the Higher Administrative Court. It held, that Germany is responsible for examining the Complainant’s application of asylum. Under Article 6(2) of the Dublin II Regulation, the Member State responsible is the one, where the unaccompanied minor lodged his application for asylum.

According to the CJEU judgment of 6 June 2013 – C-648/11 - in cases, in which a minor has filed applications in multiple Member States that had not yet been decided the provision of Article 6(2) must be interpreted as meaning that the state, in which the minor is present after lodging an asylum application there is responsible. Referring to Article 25 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, the CJEU pointed out, that its interpretation does not mean that an unaccompanied minor whose application for asylum has already been substantively rejected in one Member State can subsequently compel another Member State to examine an application for asylum.

The Federal Administrative Court did not concur with the restriction for identical applications. It held that Article 25 of Directive 2005/85/EC and the Dublin II Regulation have different regulatory contents, which complement but do not influence each other. However, the Member States are not precluded from considering such a subsequent application as inadmissible on other grounds.

Secondly, the Court noted that the acceptance of the request to take back did not subsequently transfer responsibility from Germany to Belgium. According to the wording of Article 18(7) and 20(1)(d) of the Dublin II Regulation, the mere acceptance does not result in a transfer of responsibility but merely in an obligation to take charge or take back. In the court’s opinion, this is also apparent from the CJEU decision of 6 June 2013 – C-648/11 - in which the European Court discussed extensively the interpretation of Article 6 of the Dublin II Regulation, although the requested Member States had explicitly declared their acceptance to take back. The Court also followed the finding of the appeal court, which stated that Belgium´s consent also does not constitute an exercise of the right to intervene under Article 3(2) of the Dublin II Regulation.

Finally, the Court stated that the Complainant has a subjective right to compliance with the provisions of Article 6 of the Regulation. Organizational rules can be protective for the individual if they not only govern the relationship between Member States, but also serve for the protection of fundamental rights. The provisions in Article 6 of the Dublin II Regulation on responsibility for asylum applications lodged by unaccompanied minors are – unlike, f.e. the rules regarding time limits for take back requests (see Federal Administrative Court judgment of 27 October 2015) – protective of the individual. Consequently, the Complainant is entitled to have his asylum application examined in Germany.

As regards to Section 71 of the German Asylum Act, the Court made clear that an unlawful rejection of an asylum application as inadmissible on the grounds of Section 27a of the German Asylum Act cannot be reinterpreted as a negative decision on a susbequent application, because of the different legal consequences attached.

Outcome:

The Respondent´s appeal against the judgment of the Saarland Higher Administrative Court is denied.

Observations/comments:

This case summary was written by Melina Lehrian, a law student at Humboldt University (Berlin) and founder of Derasylrechtsblog.