Germany – Federal Administrative Court, 27 October 2015, 1 C 32.14; 1 C 33.14; 1 C 34.14

Facts:

The Applicants are Pakistani Nationals who applied for asylum in Germany in January 2013. In January 2014, the Federal Office for Migration and Refugees rejected their applications and ordered their transfer to Spain where two children of one of the Applicants had already lodged applications for international protection.

The Applicants appealed by claiming that the time limit for take charge requests, stated in Article 17 of the Regulation No. 343/2003 (Dublin II), should also apply in cases of take back requests when the asylum seekers had already lodged an application for asylum in the requested Member State. Due to the failure of Germany to transmit the request within the statutory period they therefore could not be transferred. Although there have already been EURODAC hits on 16 January 2013 and other evidence of a temporary stay in Spain, German authorities submitted the take back requests to Spain on 4 December. On 17 and 19 December the Spanish authorities agreed to take back all concerned family members.

In April 2014, the Administrative Court Wiesbaden decided in favour of the Applicants (22 April 2014 - VG 2 K 197/14.WI.A - VG 2 K 194/14.WI.A - VG 2 K 192/14.WI.A). It acknowledged that the time limits of Article 17 (1) also apply to take back requests and furthermore guarantee a legal claim for individuals against their transfer.

The High Administrative Court Kassel overturned this decision in August 2014 denying both the judicial analogy of the statutory period to Article 20 and the subjective claim (28 August 2014 - VGH 2 A 976/14.A - VGH 2 A 975/14.A - VGH 2 A 974/14.A).

Decision & reasoning:

The Federal Administrative Court did not rule on the question if the time limits of Article 17 (1) of the Regulation also apply by analogy to the case of Article 20 when there is already an asylum application pending in the requested Member State. It therefore referred to several rulings where it denied a regulatory gap, which is necessary for an analogy (15 April 2014 - 10 B 17.14; 21 May 2014 - 10 B 31.14).

The Court made clear that asylum seekers cannot rely on the time limits for take charge requests stated in the Dublin II-Regulation. The statutory periods do not provide a legal claim for individuals against the Member States. Instead, the provision of Article 17 (1) of the Regulation is determined to ensure the functioning of the Dublin-procedure among the requesting and requested Member States. This ruling should particularly apply when the requested Member State accepted the delayed request.

The European Court of Justice decided in the 'Abdullahi' judgment that in a situation, in which the requested Member State agrees to take charge of the applicants for asylum, the only way in which the Applicants can call into question the decision is by pleading systemic deficiencies in the asylum procedure and in the reception conditions in that latter Member State which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter (CJEU, 10 December 2013 – C-394/12, Abdullahi, Rn. 60). Such systemic failings have neither been judicially determined in the case of Spain nor is it apparent from the documents placed before the Court by the Applicants.

Moreover, the Applicants cannot derive a right to have their asylum applications examined in Germany from Article 41 (1) of the Charter or Article 6 (1) ECHR. According to the consistent case-law of the CJEU, Article 41 (1) of the Charter is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union, whereas Article 6 (1) ECHR only guarantees procedural safeguards for civil and criminal law proceedings.

Furthermore the Court stated with regard to German procedural law, that the action for annulment (§ 42 (1) 1. Alt VwGO) is the only admissible type of action in this case. In particular, an action towards granting refugee status is inadmissible. According to the Court the Dublin Regulation differentiates strictly between the procedure of determining the responsible Member State on the one hand and the examination of the asylum applications on the other hand (Article 2 (e)). The separation of the two procedures would be undermined if the Administrative Court had to decide on the asylum application.

Outcome:

The Applicants’ review was rejected.

Observations/comments:

The ruling stands in line with the latest German Higher Administrative Court judgments (see e.g. Nordrhein-Westfalen, 16 September 2015 – 13 A 800/15.A; Schleswig-Holstein, 24 February 2015 – 2 LA 15/15) and relies on the 'Abdullahi' reasoning, however, both judgments concern the Dublin II Regulation which arguably has less of a protective scope for the applicant than Dublin III.

The German FAC in this judgment pointed out in its reasoning with regard to the cases pending before the CJEU (C-63/15, 'Ghezelbash' and C-155/15, 'Karim') that it still has to be clarified if the the Dublin III Regulation justifies a different interpretation.

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

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