Case summaries

Family unity and the best interests of the child are high priorities when applying the Dublin III Regulation.  A child who has applied for international protection in Germany but has members of his family in Greece is entitled to family unity with them in Germany. The Dublin III Regulation specifies that this transfer should be carried out within six months of a Member State’s acceptance of the take charge or take back request. The time period to transfer starts from the Member State’s acceptance of the request. The right of the asylum seeker to be transferred within said time-limit is a subjective right. Whilst Germany had accepted the take charge request they had only planned to transfer the applicants at a time after the six month deadline. An interim injunction was therefore necessary in order to ensure that the rights of the applicant were respected. 

The right to be heard entails the obligation of the court to take note of the arguments put forward by the parties and to take these arguments into consideration when taking its decision. While this does not require the court to explicitly address every single fact put forward by the parties, the grounds of the decision have to refer to the essential issues raised by such facts.

In case of a single mother and her four minor children facing deportation to a country where beneficiaries of international protection had to live under difficult conditions, these personal circumstances of the applicants are of key importance to the legal evaluation. Independently of the question, whether deportations to Bulgaria were, in light of the current conditions, generally permissible, the provisions of Art. 21 et seqq. of the Reception Conditions Directive clearly stipulated that the concerns of families with children had to be given particular consideration.

Consequently, under such circumstances a court was required to specifically set out why it assumed that the family would be guaranteed suitable accommodation that excluded the possibility of health risks and met the needs of a family with children. Otherwise, the decision amounts to an infringement of the applicant’s right to be heard under Art. 103 (1) of the Basic Law.

Article 27 of the Dublin Regulation III allows for an applicant to appeal the incorrect allocation of responsibility for a claim.  

The lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1). In an appeal against a Dublin transfer which has suspensive effect the period listed in Articles 29(1) and (2) of the DR III does not start running until the final decision on that appeal.

A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims. 

The claimant’s complaint against a decision denying an onward appeal to the Federal Administrative Court is dismissed. According to Article 132 (2) Number 1 of the Administrative Court Act, a legal question which is of fundamental significance is required for an onward appeal to the Federal Administrative Court. The burden of proof to demonstrate this is on the claimant. The arguments of the claimant, especially a divergent judgement of the Bavarian Administrative Court dealing with similar facts, refer to questions of facts, which are reserved for the initial appeal court. 

The applicant, an ethnic Kurd and a Sunni Muslim from Aleppo, Syria was granted temporary protection under the Danish Aliens Act Art. 7 (3).

A complaint to the Refugee Appeals Board was lodged claiming refugee status under the Danish Aliens Act Art 7 (1), alternatively subsidiary protection under the Danish Aliens Act Art 7 (2).

The applicants mother was granted refugee status under the Danish Aliens Act Art. 7 (1) due to her work in a health clinic treating injured insurgents.

The majority of the Board, referring to country of origin information, found that the applicant, as part of the mother’s household, if returned to Syria would be concretely and individually at risk of persecution.

The applicant thus fulfilled the conditions to be and was granted refugee status under the Danish Aliens Act Art. 7 (1).

The right to have recourse to the courts as enshrined in the German constitution (Art. 19 ss. 4 GG) is to be assessed in a thorough and reliable manner if the right to physical integrity (Art. 2 ss. 2 GG and Art. 3 of the ECHR) is at stake. The courts only adhere to this obligation if they carefully assess the evidence brought to them by the applicant considering the specific context of a person who has been granted international protection in a third country. 

The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa. 

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.

The applicant, who had deserted the Syrian army, was seen in isolation covered by the Danish Aliens Act Art. 7 (1) [refugee status]. However, the Board found serious reasons to assume that the applicant had committed a crime against humanity and war crimes during his military service and consequently he was excluded from protection. Nevertheless, the Danish Aliens Act Art. 31, (2) is an obstacle to his expulsion as he would risk persecution covered by the Danish Aliens Act Art. 7 (1) in the case of returning to Syria.