Germany - High Administrative Court of Saarland, 9 December 2014, case no. 2 A 313/13

Facts:

The Applicant is an Iraqi national of Kurdish ethnicity. According to his own statement he was born in 1993.

The Applicant left Iraq in 2008 and entered Belgium where he applied for asylum twice; both asylum applications were rejected. An asylum application in Finland was rejected as well. In 2010, the Applicant entered Germany from Belgium and subsequently filed another asylum application.

At the beginning of 2011, Germany called upon Belgium to take charge of the Applicant, Belgium accepted this request.

Subsequently, the Federal Office for Migration and Refugees (the "Federal Office") determined that the Applicant's asylum application was inadmissible and that the Applicant should be deported to Belgium.

The Federal Office confirmed this decision on 29 April 2011 even after it was informed that the Applicant's brother had been granted permission to remain in Germany and that the brother had been declared as the Applicant's legal guardian in January 2011.

The Applicant appealed the decision of the Federal Office pursuant to Section 42 (1) of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung - VwGO) applying to annul the Federal Office's decision and to obligate the Federal Office to examine the asylum application.

The Applicant filed an application to establish the suspensive effect of the appeal pending the examination of his asylum application pursuant to Section 80 (5) VwGO.

On the same day, the Administrative Court decided that the appeal had suspensory effect.

It annulled the Federal Office's decision but rejected the claim apart from that.

Germany appealed the Administrative Court's decision.

Decision & reasoning:

The High Administrative Court examined the issue of which Member State was responsible for the Applicant. Pursuant to Section 27a of the German Asylum Procedure Act (Asylverfahrensgesetz - AsylVfG), an asylum application is inadmissible if another Member State is responsible for an asylum applicant under European Union or other international treaties. In this case, the court held that this condition was not fulfilled because Germany had become responsible for the Applicant.

The court first reasoned that responsibility for the Applicant was determined by the Dublin II Regulation because the Applicant was a third country national.

The court then specified that the responsibility for asylum applications of unaccompanied minors is exclusively and primarily determined in accordance with Article 6 of the Dublin II Regulation ("Article 6") (forming a so called 'special codex'). The court held that the Applicant was a minor because he was to be given the benefit of the doubt about his age and therefore the accuracy of his statement in relation to being born 1993 was not to be questioned.

The court then examined the issue of the Applicant's brother. It noted that the Applicant's brother was not a "family member" of the Applicant within the meaning of Article 2 lit. i iii of the Dublin II Regulation and therefore not Paragraph 1 but Paragraph 2 of Article 6 applied. According to this paragraph, the Member State responsible for examining the asylum application shall be "the Member State where the minor has lodged his or her application".

In interpreting this provision, the High Administrative Court referred to the judgment of the Court of Justice of the European Union (the "CJEU") in Case C-648/11.

In this judgment, the CJEU found that the wording of Paragraph 2 of Article 6 did not specify if the application in question is the first application or a subsequent application made in another Member State.

However, the CJEU reasoned that Paragraph 2 of Article 6 cannot be read to mean "the Member State where the minor has lodged his or her application in the first place" because, unlike in Paragraphs 1 and 2 of Articles 5 and 13 of the Dublin II Regulation, Paragraph 2 of Article 6 does not refer to "first lodged" or "the first Member State".

The CJEU further reasoned that this reading of Paragraph 2 of Article 6 was confirmed by the rationale of the provision and Recitals 3, 4 and 15 of the Dublin II Regulation. According to the CJEU, the paragraph guarantees effective access to the procedures for determining refugee status and details the responsibilities of Member States. The CJEU stated that this rationale applies, above all, to unaccompanied minors who are particularly at risk. It noted that Paragraph 2 of Article 24 of the Charter of Fundamental Rights of the European Union requires that Paragraph 2 of Art. 6 be applied in the best interests of the child.

In its judgment, the CJEU noted that despite its interpretation of Article 6, pursuant to Paragraph 1 of Article 25 of Council Directive 2005/85/EC, a Member State could not be forced to examine the application of any unaccompanied minor if an identical application had already been rejected in a final decision.

Consequently, the High Administrative Court held that, a Member State can be responsible for an asylum application according to Paragraph 2 of Article 6 in cases where a non-identical application is ruled upon.

However, the High Administrative Court concluded that in light of Paragraph 2 of Article 24 of the Charter of Fundamental Rights of the European Union and the best interest of the child, the CJEU's decision could not be interpreted as a limitation on the scope of Paragraph 2 of Article 6. The court reasoned in particular that the Dublin II Regulation is directly applicable, ranks before the Council Directive 2005/85/EC and is the exclusive source for determining which Member State is responsible for examining an asylum application.

Based on this, the court held that Germany, being the country in which the unaccompanied minor resides, was the responsible Member State under Paragraph 2 of Article 6.

Although the court noted that Belgium accepted Germany's request to take charge of the Applicant, the court held that this did not change which state bore responsibility for the Applicant because the Dublin II Regulation does not state that a Member State's mere acceptance of such a request changes which Member State is responsible for the asylum seeker.

The court explained that interpreting the acceptance of the request to take charge in accordance with Paragraph 2 of Article 3 of the Dublin II Regulation would disregard Paragraph 2 of Article 6 and Paragraph 3 of Article 15 of the Dublin II Regulation and the purpose and rationale of those articles, in particular the protection of unaccompanied minors.

The High Administrative Court held that the Administrative Court's decision was correct. The Federal Office's determination that another Member State was responsible was incorrect and therefore the decision based on this determination was unlawful.

Outcome:

Appeal was rejected.

Subsequent proceedings:

This case was appaealed to the Federal Administrative Court which gave its judgment on the 16 November 2015.