Germany – High Administrative Court, 5 August 2015, Az. 1 A 11020/14

Facts:

The Applicant is an Iranian citizen. He left Iran after he had participated in demonstrations against the government and some of his friends had been arrested. According to his own account, in 2011 the Applicant travelled via Turkey and Greece to Italy, where he stayed for 17 months and applied for asylum. In March 2013, the Applicant travelled to Germany where he applied for asylum in April 2013.

The Federal Office for Migration and Refugees (the "Federal Office") submitted a request to Italy on 12 December 2013 to take charge of the Applicant. The Italian authorities did not respond.  

On 14 February 2014, the Federal Office determined that the Applicant's asylum application was inadmissible and that the Applicant was to return to Italy. The Applicant filed an application to suspend the effect of the Federal Office’s decision pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure. Such application was denied by the Administrative Court of Trier.

The Applicant also appealed the Federal Office's decision and filed a claim to annul such decision. This claim was dismissed by the Administrative Court of Trier on 14 August 2014.

The Applicant then filed an appeal with the High Administrative Court (Oberverwaltungsgericht) of Koblenz (the “Court”). He argued that his transfer order to Italy was void because the 6-month period under the Dublin II Regulation for the transfer of an applicant to another member state of the European Union (“Member State”) had expired. He further argued that the 6-month rule under the Dublin II Regulation granted him an individual right to claim that the transfer order was illegal. 

Decision & reasoning:

The Court first considered which Member State was responsible for examining the Applicant’s asylum application.  It reasoned that initially Italy, where the Applicant had first applied for asylum, was responsible for examining the application. However, after the Applicant moved to Germany, the Court noted that despite Germany’s request to Italy to take charge of the Applicant pursuant to Article 20, Paragraph 2 of the Dublin II Regulation, Germany remained the responsible Member State because it did not transfer the Applicant to Italy within 6 months of the date the Italian authorities were deemed to have accepted Germany’s request to take charge. The Court explained that, since the Italian authorities had not responded to Germany’s request to take charge of the Applicant within two weeks of receiving the request, Italy was deemed to have accepted the request (Article 20 Paragraph 1 (c) of the Dublin II Regulation) and the 6-month period began on the date of the deemed acceptance. The Court explicitly clarified that where the 6-month period under Article 20, Paragraph 1 (d) of the Dublin II Regulation expires, the requesting Member State remains responsible even when the Member State receiving the request has accepted it.

The Court next considered the issue of whether the dismissal of the Applicant’s filing to establish suspensive effect of his pending appeal to the Federal Office’s decision pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure suspended or reset the 6-month period. It held that the dismissal did not. In particular, the Court stated that an application pursuant to section 80, Paragraph 5 does not qualify as a suspensive legal remedy within the meaning of Article 20, Paragraph 1(d) the Dublin II Regulation. This is because, under German administrative law, the Court stated that an application under Section 80, Paragraph 5 does not itself have a suspensive effect, but the suspensive effect only occurs upon the relevant court’s approving decision. The Court further stated that the same applies to a claim (Klage) to annul the Federal Office's decision, because unlike other claims under German administrative law, Section 75 of the German Asylum Procedure Act (Asylverfahrensgesetz - AsylVfG) explicitly states that claims under the German Asylum Procedure Act do not have suspensive effect.

The Court also affirmed that the Applicant in the case at hand had a right to judicial review of the Dublin procedures regarding Member States’ responsibility to examine his application and such right was violated. The Court reasoned that while this right does not exist as a general matter, case law of the Court of Justice of the European Union (“CJEU”) recognises exceptions to this rule. In particular, the Court emphasised that the purpose of the Dublin system is to provide effective access to the asylum procedures and to guarantee international protection.  In the case at hand, the Court stated that the Applicant could find himself in a situation where no Member State was responsible for examining his application as in this case Italy could insist Germany was responsible due to the expiration of the 6-month period.

Accordingly, the Court held that the Applicant’s right to be provided access to an asylum procedure in the European Union pursuant to Article 18 of the Charter of Fundamental Rights of the European Union as well as Paragraph 1 of Article III of the Dublin II/III Regulation was violated. The Court reasoned that its decision may be different in a case where the receiving Member State makes it sufficiently clear that it is willing to accept responsibility for an asylum application despite the expiration of the 6-month period

Outcome:

The Court granted the appeal and nullified the transfer order. Germany was found to be responsible for examining the application for asylum.

Observations/comments:

Amendment of the decision of the Administrative Court of Trier (VG Trier) dated 14 August 2014 (Az. 2 K 426/13.TR)

Other sources:

German Press Agency (dpa) Report dated 31. July 2015 “Number of Asylum Seekers raises to record high in July” (Asylbewerber-Zahl steigt im Juli auf Rekordhoch)

Spiegel Online Report dated 20 July 2015 “EU ministers fail to agree in refugee question” (EU-Minister verpassen Einigung in Flüchtlingsfrage)