Case summaries

If a Member State is responsible for carrying out an asylum procedure under the relevant terms of the Dublin Regulation, e.g. under Art. 29 (2) of the Dublin III Regulation, an applicant may invoke that Member State’s responsibility if it has not been positively established that another Member State (which does not have responsibility) is willing to take charge of the applicant or take him or her back.

In such a case, it can be derived from the objective and purpose of the Dublin system, as well as the fact that it constitutes the procedural dimension of the substantive rights granted to applicants by Directive 2011/95/EU (i.e. Qualification Directive), that the individual concerned is entitled to have his asylum application reviewed by the responsible Member State. This is so, irrespective of the question, whether the provisions on the Member State’s responsibility generally provide for subjective rights of the applicants. 

The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:

When a Member State accepts a request by Germany to take charge of an applicant in accordance with Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin II Regulation”), the applicant may be transferred to that Member State even if he/she limits his/her application to subsidiary protection after the request to take charge has been accepted.

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

The rules of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“International Protection Directive”) do not prohibit the review of an application for asylum in Germany in a case where an applicant has previously been granted subsidiary protection in another Member State, if such application for asylum has been filed before 20 July 2015. This is because the inadmissibility of applications filed before 20 July 2015 is governed by the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“Asylum Procedures Directive”). According to Article 25 of the Asylum Procedures Directive, Member States may consider an application for asylum as inadmissible if another Member State has granted refugee status, but not if another Member State has granted subsidiary protection. 

The Dublin regulations do not allow for priority to be given to the processing of different types of transfer applications. In particular, there is no priority which favours a transfer application made on the Applicant’s own initiative as compared to one which is ordered by administrative compulsion. In deciding the application, the executing authority must allow the Applicant to transfer without administrative compulsion if it appears certain that (i) the Applicant will voluntarily travel to the Member State responsible for reviewing his application and, (ii) will report in a timely manner to the responsible authority. A transfer without administrative compulsion is not a deportation (Abschiebung), and therefore does not result in a statutory ban on entry and residence under Sec. 11 of the Residence Act (Aufenthaltsgesetz).

The case examined the allegations of an Afghan national that his isolated living condition in the detention centre of Otopeni in Romania constituted inhumane treatment, in violation of article 3 of the Convention. He further alleged a violation of Article 5 para 4 with regards to his right to an effective remedy to challenge the effectiveness of his detention. In addition, he complained of an excessive time period in detention (more than a year). 

Upon preliminary examination, it cannot be excluded that a decision of an administrative court, limited to making a Dublin transfer conditional upon the assurance of the competent authorities in the country of destination that accommodation will be provided for the family in question, violates the right to an effective remedy under Art. 19(4)(1) of the Basic Law.

Since the removal might lead to severe disadvantages for the applicants which cannot easily be compensated for and which outweigh the consequences of a preliminarily prolonged presence of the persons concerned, the removal has to be suspended until the Federal Constitutional Court has reached its final decision. 

Interventions from third parties to proceedings initiated before the National Asylum Court may be admitted.

A person with refugee status in one European Union state who applies for refugee status in a second European Union state is presumed to have unfounded fears relating to lack of protection. However, that presumption may be rebutted by evidence to the contrary.