Germany – Federal Administrative Court, 20 August 2018, 1 B 18.18

Facts:

The applicant is a Syrian national. He entered the Federal Republic of Germany in 2014 via Turkey, Bulgaria and the Netherlands. In 2014, he was granted refugee status in Bulgaria. In 2015, he filed an asylum application in Germany, which was rejected as inadmissible because he had already been granted international protection in another EU member state. At the same time, a deportation order to Bulgaria was issued.

The Administrative Court dismissed the applicant’s complaint requesting the revocation of the negative decision and the obligation to declare a national prohibition of deportation with regard to Bulgaria.

The applicant's appeal against the judgment to the Higher Administrative Court was successful. The Higher Administrative Court amended the ruling of the Administrative Court, lifted the order of deportation and instructed the Administrative Court to establish a prohibition of deportation pursuant to Section 60 paragraph 5 AufenthG. An appeal was not permitted.

The defendant, the Federal Republic of Germany, filed a 3339 complaint to the Federal Administrative Court against the refusal of the possibility to appeal.

Decision & reasoning:

The Federal Administrative Court examines whether the ground for appeal asserted by the complainant, the fundamental significance of the case (Section 132 paragraph 2 number 1 VwGO), has been successfully established. The complainant bases her contention that this condition for the admission of the appeal is fulfilled on two legal questions raised in the present case.

Firstly, according to the complainant, it is worth clarifying the necessary degree of severity of a situation attributable to general circumstances in a state for a prohibition of deportation pursuant to Section 60 paragraph 5 AufenthG in conjunction with Article 3 ECHR, in particular whether an "extreme danger" within the meaning of the case-law regarding Section 60 paragraph 7 sentence 5 AufenthG is a prerequisite.

Secondly, the complainant sees a need for clarification concerning the question whether the existence of an accommodation possibility should be included in the prognosis for reasons of protection against deportation and whether the Federal Office for Migration and Refugees or the Aliens Department is responsible for obtaining a guarantee in this regard from the country of destination.

According to the Federal Administrative Court, none of the legal questions raised are of fundamental significance. The complaint is therefore unsuccessful.

With regard to the first legal issue, the Federal Administrative Court refers to the well-established domestic jurisprudence as well as the case-law of the ECtHR regarding Article 3 ECHR and of the CJEU regarding Article 4 of the CFREU. A "degrading treatment" within the meaning of Article 3 ECHR does not presuppose intentional and purposeful action. Systemic deficiencies in the asylum procedure and the reception conditions can therefore be sufficient if they exceed a "minimum degree of severity", which must be determined on a case-by-case basis. The person concerned must find himself in a "particularly serious situation"; poor humanitarian conditions in the country of destination are only sufficient in exceptional cases. The Federal Administrative Court states that member states have an increased responsibility towards asylum seekers, as they form a particularly vulnerable group that is completely dependent on state support. Poor living conditions can therefore reach the "minimum level of severity". These principles are transferable to recognised refugees if they cannot secure their livelihood, find shelter or have access to basic medical treatment. An "extreme danger" within the meaning of the case-law regarding Section 60 paragraph 7 sentence 5 AufenthG is not, however, a prerequisite for a prohibition of deportation pursuant to Section 60 paragraph 5 AufenthG in conjunction with Article 3 ECHR.

With regard to the second legal question raised by the complainant, the Federal Administrative Court states that it can be answered by interpreting the wording of the relevant statutory provisions. Securing accommodation in the state of destination is a fact relevant to the prohibition of deportation, which the Federal Office for Migration and Refugees must determine in accordance with the investigative principle of Section 24 paragraph 1 of the Asylum Act. As a fact relating to the country of destination, the Federal Office for Migration and Refugees is also responsible for obtaining an assurance in this regard from the authorities of the country of destination. 

Outcome:

Complaint denied

Observations/comments:

This case summary was written by Felicia Jaspert, LL.M. (GWU), PhD-student at Heidelberg University. 

Other sources:

Domestic Case Law Cited

Federal Administrative Court, 1 April 2014, 1 B 1.14

Federal Administrative Court, 14 February 2018, 1 B 1.18

Federal Administrative Court, 31 January 2013, 10 C 15.12

Federal Administrative Court, 2 August 2017, 1 C 37.16

Federal Administrative Court, 24 April 2017, 1 B 22.17

Higher Administrative Court Magdeburg, 31 August 2016, 3 L 94/16