Germany - Hannover Administrative Court, 5 November 2015, no. 10 A 5157/15

Facts:

The Applicant, a citizen of Mali, entered Germany on 15 August 2015 and applied for asylum on 2 September 2015. The Applicant travelled to Germany via several countries including Malta, where he filed an application for asylum on 20 April 2014. Because of his application for asylum in Malta, the Federal Office for Migration and Refugees (the "Federal Office") filed a request with the Maltese authorities that they take charge of the Applicant on 21 September 2015. Malta accepted the request.

On 1 October 2015, the Federal Office (i) denied the Applicant’s application for asylum in Germany on the basis that it was inadmissible because Malta was the member state of the European Union (“Member State”) responsible for examining the application, (ii) issued a re-entry ban for a period of one year pursuant to Section 11 para. 1 German Residence Act (Aufenthaltsgesetz – AufenthG) and (iii) served an order for the Applicant’s return to Malta.

The Applicant appealed the decision by the Federal Office and filed a claim to annul the Federal Office's decision and to oblige the Federal Office to examine the asylum application in Germany. He argued that the order for his transfer to Malta constituted a violation of his rights under Article 4 of the Charter of Fundamental Rights of the European Union (“CFR”) and Art. 3 European Convention of Human Rights (“ECHR”) because of the systemic deficiencies of the Maltese asylum system.

The Applicant also filed an application to establish the suspensive effect of his pending appeal (einstweiliger Rechtsschutz). This application was granted by the Hannover Administrative Court (the “Court”) on 27 October 2015. 

Decision & reasoning:

The Court first examined the admissibility of the Applicant’s application. The Court explained that pursuant to Section 27a German Asylum Procedure Act (Asylverfahrensgesetz – AsylVfG), an application for asylum in Germany is inadmissible if another Member State is responsible for examining the asylum application under the laws of the European Community or other international treaties. In such circumstances, the Court noted that Section 34a German Asylum Procedure Act allows for the issuance of an order by the Federal Office to transfer an applicant to the responsible Member State. However, the Court held that the requirements of these provisions were not met in the case of the Applicant.

The Court ruled that, while in principle Malta was responsible for examining the application because the Applicant had first entered the European Union in Malta, and Malta had accepted Germany’s request to take charge of the Applicant, the Applicant’s transfer to Malta was inadmissible. This was because Article 3, Clause 2 of the Dublin III Regulation allows for the presumption that Malta’s asylum procedure, conditions and admissions practice suffer from systemic deficiencies that expose the Applicant to the risk of inhuman or degrading treatment within the meaning of Article 4 CFR. In this respect, the Court explicitly referred to the systemic failure and systemic deficiencies test applied by the European Court of Human Rights (“ECtHR”) and various authorities which shows that a presumption of a systemic failure does not require a large number of applicants to be affected. Rather, the Court stated that the focus of the examination is on the risk of inhuman or degrading treatment of the specific individual affected. Further, the Court noted that the underlying principle of mutual trust between Member States within the European Union did not relieve Germany of its obligation to thoroughly examine whether the Applicant’s rights would be violated in this case.

The Court next applied the systemic deficiencies test which examines the foreseeability and chance of recurrence of impending violations of the law. In the Court’s opinion, in the case of Malta’s asylum system, the requirements for the presumption of systemic deficiencies were met as Malta’s legal framework does not meet the minimum requirements under European law for the examination of applications for asylum. In this context, the Court referred to reports of the European Asylum Information Database (“AIDA”), according to which Malta did not implement the Dublin Regulations by way of formal laws but merely as administrative regulations. Specifically, the Court found that Malta’s procedural rules violated:

(i)             Article 20 para. 2 of the 2005 Asylum Procedures Directive (now Article 28 para. 2 of the 2013 Asylum Procedures Directive); and

(ii)            Article 18 Clause 2 subpara. 2 Dublin III Regulation and the principle of non-refoulement because they deemed an asylum application by a person that left Malta irregularly to have been withdrawn (fiction of withdrawal) and, applicants could be transferred back to their state of origin while the subsequent application was being examined.

Further, during the examination of the subsequent application, the duration of which is up to the administration’s discretion, the Court noted that applicants are regularly detained or placed under arrest by the Maltese authorities.

In respect of Malta’s practices of detention , the Court referred to a decision of the Administrative Court of Düsseldorf, which held that Malta’s practices violate European and international law. Under the Maltese migration laws, the Court found that irregular immigrants are imprisoned systematically and routinely. Of particular relevance to the Court were the following factors:

(i)             contrary to Article 8 para. 1 and 3 of the Reception Directive 2013/33/EU (the “Reception Directive”) individuals are imprisoned solely because they applied for asylum, not only in exceptional cases and for specific purposes (e.g. verification of identity, risk of absconding, preservation of evidence etc.);

(ii)            no distinction is made between migrants, asylum seekers, refugees or different groups of refugees;

(iii)           contrary to Article 9 para. 1 Sentence 1 of the Reception Directive, the length of the imprisonment is unspecified;

(iv)          no account is taken as to the special needs of the individual (i.e. unaccompanied minors, pregnant women, families with minors, disabled persons);

(v)            those who are detained are not provided access to free legal counsel as required by Article 9 para. 6 of the Reception Directive;

(vi)          detention is not imposed by law enforcement authorities but is in practice only based on a decision of the immigration authority which is not, as required by the Reception Directive, subject to court review; and

(vii)         the conditions of detention strongly indicate a violation of European standards as they lead to infringements of privacy and regularly include a lack of heating and ventilation systems, insufficient sanitary facilities and hygiene conditions, and the excessive use of force by the Personal Detention Service.

The Court stressed that this analysis was largely confirmed by AIDA’s latest reports from February 2015. Consequently, the Court found that the presumption could be made that the Maltese practice of detention did not meet the minimum requirements of the Reception Directive and, as a consequence, Germany could not refuse to take charge of the Applicant’s application. It either had to request another Member State to take charge of the Applicant or take responsibility to examine the application itself.

The Court held the denial of the asylum application by the Federal Office was inadmissible and constituted a violation of the Applicant’s rights under Articles 51 para. 1, Article 47 Sentence 2 ChFR (procedural guarantee).

Outcome:

The court nullified the transfer order, which invalidated the re-entry ban based on § 11 Abs. 1 German Residence Act.

Observations/comments:

This case summary was written by Linklaters LLP. This case summary was proof read by Language Connect.

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