Dublin

General

In 2023, Germany sent a total of 74,622 outgoing requests to other Member States, out of which 55,728 were accepted. 5,053 transfers to other Member States were carried out. Germany received 15,568 incoming requests in 2023, out of which 9,954 were accepted, resulting in 4,275 transfers to Germany. 12.4% of all asylum decisions in Germany in 2023 were taken as a result of the Dublin procedure. [1] The number of requests and transfer is similar to 2022 where Germany had sent a total of 68,709 outgoing requests and received 14,233 incoming requests and 3,700 incoming transfers.[2] In 2021, there were 2,656 (2020: 2,953) outgoing and 4,274 incoming (2020: 4,369) transfers.[3] Pre-Covid, transfer numbers were still higher than in 2022 and 2023, however, with 8,423 outgoing and 6,087 incoming transfers in 2019.[4]

In 2023, the outgoing requests mainly went to Croatia (16,705), Italy (15,479) and Austria (7,995). Germany received 15,568 requests in the same period, mainly from France (5,209), the Netherlands (2,762), and Belgium (2,384).[5] Detailed statistics on the legal bases for the requests are available from Eurostat. They might differ slighty from statistics reported at the national level.

Dublin statistics: 2023

Source: Federal Government, Response to parliamentary question by the CDU/CSU,20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22-23.

Detailed statistics on the legal bases for the requests are available from Eurostat. They might differ slighty from statistics reported at the national level. To mirror national data, the data on legal bases presented below concerns first requests, rather than total requests which would include re-examination requests.

Source: Eurostat, https://doi.org/10.2908/MIGR_DUBRO and https://doi.org/10.2908/MIGR_DUBDO, as of 27 May 2024

Source: Eurostat, https://doi.org/10.2908/MIGR_DUBRI and https://doi.org/10.2908/MIGR_DUBDI, 27 May 2024

Application of the Dublin criteria

The majority of outgoing Dublin requests was based on so-called ‘Eurodac hits’ in 2023 (73.7%), similar to previous years (68.6% in 2022, 69.9% in 2021 and 71.8% in 2020).[6] Details on the criteria used for requests are only available for the outgoing requests which were based on ‘Eurodac hits’. In 2023, a total of 54,640 outgoing requests were based on Eurodac, out of which:

• 39,996 (73.2%) after an application for international protection (CAT 1);[7]
• 10,522 (19.3%) after apprehension upon illegal entry (CAT 2);[8]
• 4,122 (7.5%) after apprehension for illegal stay (CAT 3).[9]

The notable decrease in the numbers of transfers from Greece to Germany before and during the Covid-19 outbreak continued in 2023, with 167 transfers, compared to 212 in 2022 (whole year) (531 transfers in 2021, 423 transfers in 2020 and 730 transfers in 2019 compared to 3,495 in 2018). The overwhelming majority of transfers from Greece (97 out of 98) were carried out on the basis of the family unity provisions of the Dublin Regulation between January and August 2023 (full-year figures are not available as of April 2024). The German government provided the following details on transfers carried out from Greece on the basis of family unity provisions for the time peiod between January and August:

Source: Federal Government, Responses to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at https://bit.ly/3T30yHd, 39.

One reason for the decrease in transfers from Greece in recent years is that the BAMF has been handling applications for family reunification under the Dublin regulation more restrictively. In 2020, a total of 1,289 requests were sent from Greece, and 1,036 were rejected.[10] It has been reported that requests are often rejected for formal reasons (supposed expiry of deadlines for the request, alleged lack of evidence for family relationships etc.). In many cases, families therefore had to appeal to courts in order to oblige the BAMF to accept a transfer request from Greece.[11] In 2020, in 743 cases Greece remonstrated the rejection by the BAMF. In the same year, the BAMF accepted 328 of such remonstrations.[12]

However, in 2021 and 2022, both the overall number of incoming requests and the rejection rate decreased, with 377 out of 701 incoming requests being rejected in 2021 and 191 rejections out of 339 requests in 2022.[13] This seems to have continued in 2023, where 199 incoming requests were filed and 101 requests were rejected between January and August.[14] In the same period, Greece remonstrated the rejection in 81 cases, and in 50 cases the BAMF accepted responsibility after such a remonstration.[15]

The dependent persons and discretionary clauses

Between January and August 2023, the sovereignty clause was applied in 574cases (compared to 624 cases in 2022, 665 cases in 2021 and 1,083 cases in 2020), resulting in an asylum procedure being carried out in Germany.[16]

Procedure

The Dublin Regulation is explicitly referred to as a ground for inadmissibility of an asylum application in the Asylum Act.[17] The examination of whether another state is responsible for carrying out the asylum procedure (either based on the Dublin Regulation or, if Germany is the responsible Member State per the Dublin regulation, on the German ‘safe third country’ rule) is an admissibility assessment and as such a part of the regular procedure. Thus, in the legal sense, the term ‘Dublin procedure’ does not refer to a separate procedure in the German context, but merely to the shifting of responsibility for an asylum application within the administration (i.e., takeover of responsibility by the ‘Dublin Units’ of the BAMF).

Fingerprints are to be taken from all asylum seekers aged six years or older[18] on the day that the application is registered and are systematically subjected to a Eurodac query for applicants aged 14 years and older, in line with the Eurodac regulation. Eurodac queries are the major ground for the initiation of Dublin procedures. No cases of asylum seekers refusing to be fingerprinted have been reported, only several cases where “manipulation” of fingerprints took place, i.e., persons scraping off or etching their fingertips, making fingerprints unrecognisable.

In principle, only the BAMF is responsible for conducting the Dublin procedure. The Federal Police informs the BAMF if there is evidence or if statements of a third country national apprehended at the border indicate that another Dublin State might be responsible for the procedure. The Dublin procedure is then carried out by the BAMF which can issue a removal order. A possible forced return to the responsible Member State is carried out by the federal states (Länder) or the Federal Police.[19] The Federal Police may also ask a court to issue a detention order if there is a considerable risk of ‘absconding’. When this happens, it implies that asylum seekers are not sent to the ‘normal’ reception centres but remain under the authority of the Federal Police for the whole duration of the Dublin procedure for a maxium of six weeks, in line with the Dublin regulation.[20] Following a ruling by the Federal Court in July 2020 that detention is illegal for refusal of entry in the case of internal border controls, the Federal Police has adapted its practice and only orders detention when there is a ‘heightened risk of absconding’, according to the Federal Government.[21] In 2023, the Federal Government reported that persons who ask for asylum at the border are ‘in principle’ sent to the responsible initial reception centres,[22] which would indicate that they are not – at least immediately – detained for the purposes of the Dublin procedure.[23]. For more information on applications at the border and practices of refusal of entry see Access to the territory and push backs).

Since the Mengesteab judgment of the CJEU 2017, the BAMF bases the time limits for issuing a ‘take charge’ or ‘take back’ request on the moment of registration and the issuance of an ‘arrival certificate’, not the moment when the application is lodged. It applies the same interpretation to incoming requests and has often rejected such requests on the basis that the deadlines of the Regulation have been exceeded.[24]

On average, a Dublin procedure lasted 3.1 months in 2023, compared to 2.3 months for the whole of 2022.[25] If Germany took over responsibility after a failed transfer to another Member State, the average duration of the whole asylum procedure until a first instance decision was 15.2 months between January and August 2023, compared to 22.1 months for the whole of 2022.[26]

Individualised guarantees

There is no general policy to require guarantees for vulnerable groups, although the Dublin Unit and local authorities make arrangements for the asylum seekers concerned e.g. to ensure the continuation of dialysis treatments, or to ensure separate accommodation of families in cases of domestic violence.[27] For an analysis of the examination of individualised guarantees and suspension of transfers in relation to specific countries see Suspension of transfers.

Transfers, absconding and ‘church asylum’

Since 2023, self-initiated voluntary transfers are possible. The transfer to the responsible member state can be carried out on the initiative of the asylum seeker in a controlled manner or accompanied. These are carried out in cooperation with immigration authorities and police in compliance with the organisation requirements and the exchange of information with the responsible member state.[28]

In line with the Residence Act,[29] dates of removals are not previously announced to asylum seekers in Dublin procedures.[30] The police usually perform unannounced visits to places of residence e.g. reception centres with a view to apprehending the person and proceed to the transfer. Some foreigners’ authorities seem to deviate from this practice, however, and instructs applicants to come to be at a specific location for their transfer or to be present in their room in the reception centre at a specified time for pick-up by the police, usually between 03:30 and 05:00. If the applicant is not found in their room at that time, the authority deems the person to have ‘absconded’ and informs the BAMF accordingly in order for the extension of the transfer deadline from 6 to 18 months to be ordered under Article 29(2) of the Dublin Regulation.[31] In August 2021, the Federal Administrative Court stated that a breach to cooperate with authorities does not generally justify the assumption of absconding according to Art. 29 (2) of the Dublin Regulation as long as the authorities are aware of the applicant’s whereabouts and they have an objective possibility of a transfer. Rather, all circumstances of a case have to be taken into account.[32] Following the ruling, the BAMF has updated its internal guidelines to the effect that if the applicants does not comply with the order to be at a specific location outside the reception centre at a given time, this is not sufficient reason to believe the person has absconded, and hence the extension of the transfer deadline to 18 months cannot be ordered solely on this fact. However, the BAMF does consider that a person absconded if they are not found in the reception centre despite a previous announcement by the authorities.[33]

The use of excessive force, physical restraints, separation of families, humiliating treatment and sedative medication by police authorities in Dublin transfers were denounced in Berlin and Lower Saxony in 2018.[34] The practice continues for both Dublin transfers and removal since 2023.[35] Observations from Bavaria corroborate coercive practices in the enforcement of Dublin transfers, including police raids with dogs in AnkER centres and handcuffing of asylum seekers, including pregnant women.[36] For the first half of 2023, the Federal government reported that 47 Dublin transfers involved use of means of physical restraint by the police, compared to 103 over the whole of 2022, 110 in 2021, and 129 in 2020.[37]

Church asylum

The extension of the deadline to 18 months in case of absconding has been heavily debated in the context of ‘church asylum’ (Kirchenasyl), the temporary sanctuary offered by religious institutions to protect people facing removal from undue hardship. After an initial agreement between the BAMF and high-ranking members of the Protestant and Catholic church in Germany in 2015, the central points of contact from the churches can submit a dossier providing meaningful information about individual hardship as ultima ratio to the BAMF and the BAMF will reconsider the case in justified exceptional cases to avoid humanitarian hardship.[38] Church asylum does is not a legal institution, but is respected as an expression of a Christian-humanitarian tradition. During the examining of the dossier by the BAMF, the immigration authorities generally refrain to transfer as long as the people concerned are staying in the church. If BAMF rejects a hardship case after reviewing a dossier the asylum seeker is legally obliged to leave the country.  In cases in which the church’s dossier is followed, the BAMF applies a discretionary clause in accordance with Art. 17 (1) Dublin III Regulation and initiates the national procedure. In cases in which the church’s dossier is not followed, the BAMF informs the church representative of the negative decision with the aim of the responsible parish releasing the person from church asylum within 3 days after the announcement of the negative decision. Going to church asylum does not affect the original transfer deadline as long as the actual whereabouts are known.

The current BAMF practice dates from January 2021, when the BAMF clarified that persons in ‘open church asylum’ where their whereabouts are known are not considered to be absconding.[39]  The change followed an update in the guidelines in 2018 which extended the grounds on which absconding could be assumed, and a ruling by the the Federal Administrative Court in 2020 that a person receiving church asylum whose whereabouts are reported to the BAMF cannot be considered as ‘absconding’ from the Dublin procedure (for more inforamtion see the 2022 Update to the AIDA Country Report for Germany).[40] This led to an increase in reported cases: in 2022, a total of 1,243 cases of ‘church asylum’ in the context of a Dublin procedure were reported to the BAMF, up from 822 cases in 2021 and 335 in 2020.[41] In 2023, 2,065 such cases were reported, showing a further increase in 2023.[42] As of 12 August 2023, the BAMF had decided in six cases to apply the sovereignty clause of the Dublin regulation and to conduct the asylum procedure in Germany.[43] However, according to church activists in North Rhine Westphalia, almost all cases of church asylum are successful in that they lead to the ‘intended goal’, presumably the avoidance of a Dublin transfer or removal.[44] Between January and September 2023, Germany became responsible for the asylum applications of persons in church asylum in 1,676 cases (however it cannot be established in how many of these cases this was a direct result of the granting of church asylum).[45]

According to church activists, demand has been rising over the course of 2022, with far more requests than the participating churches can accommodate.[46] Church asylum was challenged by prosecution authorities in Bavaria in recent years, leading to criminal charges against persons providing this type of shelter. The Bavarian High Court ruled on 25 February 2022 that granting shelter and food to persons obliged to leave Germany cannot be considered a criminal offence if the agreement on church asylum is followed. The court further found that there is no obligation on the host to actively end church asylum when the stay in unauthorised.[47]

Notwithstanding, 2023 has seen a number of “breaches” of church asylum to enforce Dublin transfers. In Viersen (North Rhine Westphalia), police entered the facilities of the protestant church to apprehend a couple that was to be transferred to Poland. The transfer was stopped because the woman suffered a breakdown, but the couple was still placed in detention. The case led to widespread protests, and the mayor of Viersen finally intervened to stop the detention and transfer just before the 6 month period ended.[48] In Schwerin (Mecklenburg-Vorpommern), specialised police forces broke into an apartment owned by the church in December 2023 to deport two adult sons of a family of six from Afghanistan who had been given assurances by the German government that they would get a right to enter Germany, but ultimately had to flee via Iran and Spain since the visa procedure was taking too long. The transfer to Spain was halted after protests.[49] In November 2023, the government of North Rhine Westphalia issued internal guidelines in which it clarified that foreigners’ authorities cannot proceed with a transfer unless the BAMF has clearly stated that it will not apply the sovereignty clause and explicitly orders the transfer.[50]

Withdrawal of benefits and detention

‘Absconding’ from the Dublin procedure also has repercussions on Reduction or withdrawal of reception conditions, in that when the failure to transfer a person can be attributed to their behaviour, they are only entitled to reduced benefits.[51] In cases of church asylum, according to a ruling by the administrative court of Bremen, persons who leave the district assigned to them by local authorities in order to find sanctuary in a church are no longer entitled to social benefits for asylum seekers.[52] Absconding can also constitute a ground for ordering Detention.[53]

Practices as to detention before and during the Dublin procedure vary among the Federal States. Not all Federal States differentiate between Dublin transfers and removals to countries of origin in their detention statistics. Among those which do collect and segregate the data, between 1.5% and 50% of all Dublin transfers involved a form of detention in 2020.[54] If asylum seekers have already accessed the regular procedure, they must not be detained for the duration of the procedure. However, detention may be imposed once an application has been rejected as ‘inadmissible’ because another country was found to be responsible for the asylum procedure, there is a risk of absconding and the removal order issued as a result of the inadmissibility decision becomes enforceable. In this case, the legal basis for ordering and prolongation of detention is the same as for other forms of detention pending removal. This implies that certain preconditions for the lawfulness of detention have to be fulfilled: in particular, any placing into custody under these circumstances should generally be ordered in advance by a judge, since it does not constitute a provisional arrest which may be authorised by a court at a later stage. However, a judge should generally not issue a detention order until the formal request to leave Germany – usually a part of the rejection of the asylum application – has been handed out to the person concerned and if sufficient grounds for detention exist. However, it has been alleged that the authorities often order detention even if these conditions are not met (in the same manner as in other cases of detention pending removal, see Alternatives to detention). It can be assumed, based on the comparable low number of places which are available in detention facilities, that most Dublin transfers take place within one day and therefore are preceded only by short-term arrests, in contrast to detention in a specialised facility which has to be ordered by a judge (see also Detention).

Personal interview

There is no consistent practice regarding the timing of interviews in Dublin procedures. For the authorities a Dublin procedure means that responsibilities are transferred to the ‘Dublin units’ of the BAMF, which may happen at various stages of the procedure. In practice, the Dublin and regular procedure are carried out simultaneously. The personal hearing in the framework of the Dublin procedure is to be conducted, if possible, immediately after the registration of the asylum application, during which a first interview is conducted to establish the basic facts of a case in relation to the possible responsibility of another Member State to carry out the asylum procedure. In many cases, however, the personal interview is conducted a few days after the registration, sometimes even later and when the BAMF has already received a reply from the Member State to which it has sent a take charge or take back request, but in any case before a decision of inadmissibility is issued, unless the interview can be waived in accordance with Art. 5 (2) of the Dublin regulation.[55]

In this Dublin interview, applicants should be given an opportunity to provide possible reasons why a removal to another Dublin state could be impeded (e.g. existence of relatives in Germany). According to BAMF internal guidelines of December 2022, even if there are reasons to believe that another Member State might be responsible, the BAMF case officer is to conduct a personal interview related to the grounds for asylum (see Regular procedure – Personal interview) after the ‘Dublin interview’ to increase efficiency of the procedure.[56] In this context it has been noted that questions on the travel routes of asylum seekers may take up a considerable part of the interview, which, when both interviews are conducted on the same day, risk result in a shifting of focus away from the core issues of the personal interview due to time constraints.

Whereas before the outbreak of Covid-19, a face to face interview was mandatory for the admissibility interview,[57] the reform of the Asylum Act through Act on the acceleration of asylum court proceedings and asylum procedures[58] which entered into force on 1 January 2023 introduced the possibility to conduct video interviews, including for Dublin interviews (see Personal interview).Even before, this possibility had been introduced for Dublin interviews as of July 2021.[59] In 2023, 715 video interviews were conducted (see Regular procedure – Personal interview). It is not possible to say how many of these were purely related to admissibility according to the Dublin regulation however.

Appeal

 Dublin decisions are inadmissibility decisions under Section 29 of the Asylum Act.

It is possible to lodge an appeal against a Dublin decision before an Administrative Court within 1 week of notification. This appeal has no automatic suspensive effect; suspensive effect can be restored only upon request to the court. Once an application to restore suspensive effect has been filed, the transfer to another Member State cannot take place until the court has decided on this request. The transfer can be executed only if the applicant misses the deadline or if the court rejects the application for suspensive effect. As of 1 January 2023, following the 2022 Act on the acceleration of asylum court proceedings and asylum procedures,[60] courts have discretion on whether to hold personal hearings if the applicant is represented by a lawyer. However, a hearing must take place if the applicant requests so.[61]

Material requirements for a successful appeal remain difficult to fulfil and the way these requirements must be defined in detail remains a highly controversial issue. For example, administrative courts in the Federal States continue to render diverging decisions regarding whether problems in the different Member States’ asylum systems amount to ‘systemic deficiencies’ or not (see  Suspension of transfers).

In addition, serious practical difficulties result from the 7-day time limit for the necessary application to the court. This short deadline is often difficult to meet for asylum seekers since the parallel application for suspensive effect must be fully substantiated. To prepare such an application requires expert knowledge of the asylum law, but in the absence of systematic legal counselling asylum seekers regularly have to turn to a lawyer or to refugee counsellors for assistance. However, it might prove impossible for asylum seekers to make an appointment with lawyers or counsellors within the short timeframe. Even if they manage to contact a lawyer, it is still very difficult to produce a sufficiently substantiated application at such short notice. Therefore, it has been argued that the one-week period, although being an improvement compared to the previous situation, still does not provide for an effective remedy and might constitute a violation of the German Constitution.[62]

In May 2017, the Federal Constitutional Court established some general standards for the appeal procedure in Dublin cases and cases of removals of people who have been granted protection status in a third country. With regard to the case at hand, where the Administrative Court had rejected an application to restore suspensive effect of an appeal against a removal to Greece, the Court stated that the reception conditions in another country have to be assessed on a factual basis which is ‘reliable and sufficient, also concerning the amount [of available information].’ This is necessary, in any case, if there were grounds to assume that inhuman or degrading treatment might take place following a removal. If sufficient information on the factual situation in another country was not available, suspensive effect of the appeal should be granted. In line with the general principle of judicial independence, the Constitutional Court did not define which kind of information was necessary to clarify the factual situation. It only pointed to the general obligation for authorities and courts to obtain information about conditions in other countries and to obtain individual guarantees, if necessary.[63]

The following table illustrates the number of court decisions on requests for urgent legal protection i.e. requests to restore suspensive effect of appeals in Dublin cases in 2023. A decision to grant an interim measure does not necessarily mean that the court suspended a transfer because of serious individual risks or because of systemic deficiencies in another Dublin state. In many cases, interim measures can also be granted for formal or technical reasons (expiry of time-limits, formal errors in the authorities’ decision etc.).

Source: Federal Government, Response to parliamentary question by the CDU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 27.

Legal assistance

There are no specific regulations for legal assistance in Dublin procedures; therefore, the information given in relation to the section on Legal assistance applies equally to the Dublin procedure.

It is possible to apply for legal aid for the appeal procedure. However, because of time constraints and because many of these cases are likely to fail the ‘merits test’, it is unusual for legal aid to be granted, with the possible exception of cases concerning certain Dublin countries such as Italy, Hungary, Bulgaria, in which chances of success have to be rated higher due to the conflicting case law.[64]

Suspension of transfers

Suspension of transfers following the outbreak of the war in Ukraine[65] and during the Covid-19 pandemic

In 2022, several countries (Poland, Slovakia, Romania, and the Czech Republic) suspended incoming Dublin transfers following the outbreak of the war in Ukraine. The suspensions were gradually lifted until August 2022. For more information, see the 2022 Update to the AIDA Country Report for Germany.[66] For information on the suspension of Dublin transfers during the Covid-19 pandemic see the 2021 and 2022 Update to the AIDA Country Report for Germany.[67]

Suspension of transfers and individualised guarantees for specific Member States

Croatia: Several administrative courts have halted Dublin transfers to Croatia, referring to illegal pushbacks of asylum seekers to Bosnia Herzegovina and Serbia and police violence against asylum seekers, while other courts see no danger of pushback for returnees from Germany (for an overview see tables above and below). With a total of 189 transfers compared to 10,576 outgoing requests and 9,544 cases accepted by Croatia until August 2023, the ratio of transfers to requests was much lower than the average of all member states. The number of outgoing requests almost doubled in 2023 compared to 2022 (4,657 outgoing requests until August, compared to 4,657 for the whole of 2022).[68] According to practicioners, this seems to be at least in part related to a practice by the BAMF whereby it sends outgoing requests for persons who have first entered the EU via Greece and then moved onwards to Germany via Croatia, and where a transfer to Greece is not possible.[69] However, the number of people travelling through Croatia also seems to have risen following the country’s accession to Schengen.[70]

Hungary: According to information provided by the BAMF in 2018, any Dublin request to the Hungarian authorities is accompanied by a request of individualised guarantees, i.e. that Dublin returnees will be treated in accordance with the Reception Conditions Directive and the APD.[71] It is established jurisprudence, however, that admissibility decisions and removals regarding Hungary are unlawful due to the lack of access to the national asylum system in Hungary[72] (see table below for other decisions suspending transfers to Hungary). The German government informed Parliament in March 2019 that no individual guarantees had been provided by the Hungarian authorities. Hence, it can be concluded that the policy of seeking individual guarantees have led to a standstill in transfers to Hungary in practice. However, this has not led to a formal suspension of transfers or to a change of policy: German authorities continue to submit take charge requests to their Hungarian counterparts and to send requests to Hungary also in 2023.[73] Whereas no Dublin transfers to Hungary took place between 11 April 2017 and the end of 2020,[74] one person was transferred to Hungary in 2021, with an individualised guarantee issued by the Hungarian authorities.[75] 8 transfers took place in 2022,[76] and 6 in 2023.[77] No further information is available on these cases and it is unclear whether this presents a general change in practice on the side of either the German or the Hungarian authorities. Several court decisions halting transfers to Hungary in 2022 and 2023 (see table below) indicate that the BAMF is again ordering transfers to Hungary at least in some cases. 

Greece: A formal suspension of transfers to Greece, which had been in place for several years, ended in March 2017.[78] In 2022 and 2021, Germany sent a comparably high number of take charge requests to Greece (9,166 in 2022, or 13.3% of all outgoing requests in 2022, 10,427 or 24.6% of all outgoing requests in 2021).[79] However, only 3 transfers were carried out in 2023 , none in2022, only one in 2021 and 4 in 2020 (compared to 20 in 2019).[80] While the number of requests seems to be similar in 2023 with 5,523 outgoing requests sent, they represented only 7.4% of all outgoing requests.[81] The government asserts that vulnerable people are not being transferred since Dublin transfers have been taken up again in March 2017, and that individualised guarantees are sought for every case regarding reception, accommodation and the asylum procedure.[82] In 2022, no such individualised guarantees were issued according to the Federal Government.[83] Upon a freedom of information request, PRO ASYL obtained a letter by the BAMF dated to February 2024 according to which since 31 January 2024, people from Algeria, Morocco, Pakistan and Bangladesh are to be deported back to Greece as part of the Dublin procedure if there is a EURODAC hit from Greece. The BAMF stated that Greece is accepting returns of people from these countries of origin and will individually guarantee their human rights-compliant accommodation. It has also instructed the Federal States to treat transfers to Greece from the mentioned nationalities with priority. [84]

In October 2019, the Federal Constitutional Court defined some important standards concerning transfers of persons who have applied for international protection in Greece, ruling that it is necessary to take into account the situation of an asylum seeker in Greece not only during the asylum procedure, but also after the possible granting of protection status. The Constitutional Court in the present case saw ‘concrete indications’ that persons with protection status might be at risk of treatment which might violate Article 4 of the European Charter of Fundamental Rights. In line with the CJEU’s ruling in the case of Jawo,[85] the court held that authorities and courts in Germany had to examine this point when deciding about the possibility of a transfer.[86]

For transfers of persons who have received a protection status in Greece, see Suspension of returns for beneficiaries of international protection in another Member State.

Italy: The BAMF stated in March 2019 that it now carries out Dublin transfers to Italy without obstacles, after discontinuing a previous policy of requesting individual guarantees for families with children below the age of three.[87] Transfers to Italy are systematically ordered, including for vulnerable persons such as pregnant women or persons with severe mental health conditions.[88] In reaction to a letter issued by the Italian ministry in December 2022 that it would no longer accept incoming requests based on a lack of reception capacity, the German government responded that it continued to apply the Dublin procedure as ‘directly applicable EU law’ and that it would ‘take into account temporary challenges in individual cases’.[89] NGOs reported that the BAMF continued to issue Dublin transfer decisions as of March 2023, even though Italy did not accept the transfers in most cases.[90] While the Higher Administrative Court of North Rhine Westphalia had found that the refusal of Italy to accept Dublin returnees, together with the government’s statement that there is no reception capacity, amounts to systemic deficiencies which make Dublin transfers to Italy illegal, the Federal Administrative Court rebuked this assumption in a decision issued in October 2023.[91] A total of 15,479 outgoing requests to Italy were sent in 2023, while 11 transfers took place.[92] In at least nine of these cases the persons travelled back voluntarily and independently, according to the BAMF.[93]

With reference to the CJEU decision in the case of Jawo vs. Germany, the Federal Constitutional Court reiterated in October 2019 that courts are obliged to consult objective, reliable and up-to-date sources of information when deciding on the legitimacy of Dublin transfers.[94] The Constitutional Court overruled two decisions by the Administrative Court of Würzburg in which transfers to Italy had been declared permissible. The Constitutional Court pointed out that the lower court had not sufficiently examined the reception conditions in Italy and the possible risks upon return which might result from homelessness and from possible systemic deficiencies in the asylum system. In 2021, the BAMF sought to appeal a decision of the Higher Administrative Court of North Rhine Westphalia in July 2021, halting the transfer of a single man to Italy ruled unlawful due to the lack of accommodation in Italy,[95] based on an alleged lack of sufficient consideration of the facts on the ground. The Federal Administrative Court however confirmed the decision on 27 January 2022.[96]

Over the last years several hundred court cases have resulted in suspension of transfers to other countries by means of issuance of interim measures. At the same time, however, other courts have decided in favour of transfers to these countries. The inconsistent jurisprudence is related to the fact that the definition of requirements for a suspension of transfers remains highly controversial. For example, courts continue to render diverging decisions on the issue of whether problems in the Italian asylum system amount to ‘systemic deficiencies’ or not, or whether the situation of Dublin returnees in Italy calls for individualised guarantees or not. Jurisprudence regarding transfers to Italy has remained inconsistent as of 2023.[97] Notably, the Higher Administrative Court of Lower Saxony found in June 2022 that access to illegal forms of work in Italy can be taken into account when state authorities are not enforcing the law against such forms of work.[98] Two administrative court decisions issued after the new right-wing government in Italy took office point to different assessments of the impact of the change in government on conditions for asylum seekers: while the administrative court of Greifswald does not expect the situation to change,[99] the administrative court of Braunschweig expects the situation to worsen.[100] A decision by the higher Administratie Court of Schlewsig-Holstein found no systemtic deficiencies, even for vulnerable applicants, in January 2024.[101]

A detailed analysis of case law on this issue, which consists of hundreds of decisions, is not possible within the scope of this report. By way of illustration, recent decisions concerning transfers of asylum seekers and beneficiaries of international protection to selected Member States are listed below:

Source: Publicly available caselaw databases. See also the database of asyl.net.

In other cases, courts have stopped short of discussing these basic questions and have stopped transfers on individual grounds e.g., lack of adequate medical treatment for a rare disease in the Member State.

For information about suspensions of transfers of beneficiaries of international protection, please see Suspension of returns for BIPs in another Member State.

The situation of Dublin returnees

Germany received 4,275 transfers in 2023,[102] compared to 3,700 in 2023, 4,274 in 2021, 4,369 in 2020 and 6,087 in 2019. Dublin transfers are usually carried out individually through commercial flights.

Betwen January and August 2023, the highest number of incoming requests towards Germany came from France, the Netherlands and Belgium.[103] Per the national dispersal rules, if persons are transferred to Germany based on family unity provisions, upon arrival they are sent to the place where their relatives are staying and local authorities provide them with accommodation and other related reception services.

There have been no reports of Dublin returnees facing difficulties in re-accessing an asylum procedure or facing any other problems after having been transferred to Germany. There is no uniform procedure for the reception and further treatment of Dublin returnees. If they had already applied for asylum in Germany, they are usually obliged to return to the region to which they had been assigned during the former asylum procedure in Germany. If their application had already been rejected by a final decision, it is possible for them to be placed in pre-removal detention upon return to Germany.[104]

[1] BAMF, Aktuelle Zahlen, December 2023, available in German at: https://bit.ly/3T3N1PA, 10.

[2] BAMF, Aktuelle Zahlen, December 2022, available in German at: https://bit.ly/3TDLUEZ, 10.

[3] BAMF, Aktuelle Zahlen, December 2021, available in German at: https://bit.ly/3KBBalG, 10. Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 32.

[4] BAMF, Das Bundesamt in Zahlen – 2019, August 2020, available in German at: http://bit.ly/3WyZmKc, 44.

[5] Federal Government, Response to parliamentary question by the CDU/CSU,20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22-23.

[6] Federal Government, Response to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 2, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 3; 20/861, 24 February 2022, available in German at: https://bit.ly/41vdo3r, 2; 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 3.

[7] Article 9 recast Eurodac Regulation.  

[8] Article 14 recast Eurodac Regulation.

[9] Article 17 recast Eurodac Regulation. Source: Federal Government, Response to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 2.

[10] Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 44.

[11] Anne Pertsch, „Dublin reversed’ vor Gericht. Aktuelle Rechtsprechung zu Dublin-Familienzusammenführungen. Asylmagazin 8-9/2019, available at: https://bit.ly/2W0l8tM, 287-294.

[12] Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 46. The number of remonstrations and acceptances cannot be seen in direct relation to each other since both refer to the number of remonstrations and acceptances within the year.

[13] Federal Government, Responses to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 38.

[14] Federal Government, Responses to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 39.

[15] Federal Government, Responses to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 39-40.

[16] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 11-12,; 20/861, 24 February 2022, available in German at: https://bit.ly/41vdo3r, 10; 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 9.

[17] Section 29(1) Asylum Act.

[18] See Section 16(1) Asylum Act; Federal Government, Response to parliamentary question by The Left, 20/5674, 15 February 2023 available in German at: https://bit.ly/3ORuTGl, 32.

[19] Federal Government, Response to parliamentary question by The Left, 18/13428, 18 August 2017, 23-24.

[20] Article 28 Regulation (EU) 604/2013.

[21] Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 50-51. The Federal Court decision is available in German at: https://bit.ly/3rfbXV9.

[22] Federal Government, Response to parliamentary question by The Left, 20/5674, 15 February 2023 available in German at: https://bit.ly/3ORuTGl,32.

[23] Federal Government, Response to parliamentary question by The Left, 20/5674, 15 February 2023 available in German at: https://bit.ly/3ORuTGl, 32.

[24] BAMF, Entscheiderbrief (newsletter for decision-makers) 9/2021, available in German at: https://bit.ly/3T5G2FH, 5-6; Diakonie Deutschland, Family reunification in Germany under the Dublin III Regulation. Entitlement – Procedure – Practical tips English translation of 2nd edition, 2022, available at https://bit.ly/3R6TB6J, 8. See also AIDA, Country Report – Greece, available here.

[25] Federal Government, Response to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 25.

[26] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 37; Federal Government, Responses to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 36-37.

[27] Information provided by the BAMF, 1 August 2017.

[28] Information provided by the BAMF on 10 May 2024.

[29] Section 59(1) Residence Act.

[30] Section 59 (1) Residence Act; Diakonie Deutschland, PRO ASYL & Informationsverbund Asyl & Migration, Das Dublin-Verfahren. Grundlagen, Verfahrensablauf und Praxistipps, January 2024, available in German at: https://bit.ly/42PClHq, 93.

[31] Diakonie Deutschland, PRO ASYL & Informationsverbund Asyl & Migration, Das Dublin-Verfahren. Grundlagen, Verfahrensablauf und Praxistipps, January 2024, available in German at: https://bit.ly/42PClHq, 93.

[32] Federal Administrative Court (BverwG), Decision 1 C 55.20, 17 August 2021, available in German at: https://bit.ly/3rgh2wA.

[33] BAMF, Dienstanweisung Dublin (internal directive for Dublin procedures), version of December 2022, available in German at: https://bit.ly/3J5jPTA, 149.

[34] See Federal Government, Response to parliamentary question by The Left, 19/7401, 29 January 2019, available in German at: https://bit.ly/2HwaiQQ.

[35] For examples of excessive force or inhumaen removal practices see for example the website of Abschiebungsreporting NRW: https://www.abschiebungsreporting.de/.

[36] ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[37] Federal Government, Response to parliamentary question by The Left, 20/890, 02 March 2022, available in German: https://bit.ly/3v51e5s, 28.

[38] BAMF, ‘Merkblatt Kirchenasyl im Kontext von Dublin-Verfahren’, November 2022, available in German at: https://bit.ly/3HY47WI.

[39] BAMF, ‘Merkblatt Kirchenasyl im Kontext von Dublin-Verfahren’, November 2022, available in German at: https://bit.ly/3HY47WI. See also PRO ASYL, ‚ Bundesverwaltungsgericht entscheidet: Kein »Flüchtigsein« im offenen Kirchenasyl!‘, 21 September 2020, available in German at: https://bit.ly/3fi5Rhd.

[40] Federal Administrative Court (BverwG), Decision 1 B 19.20, 8 June 2020, available in German at: https://bit.ly/33k6qEK.

[41] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 27; 20/861, 24 February 2022, available in German at: https://bit.ly/41vdo3r, 18; 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 25.

[42] Federal Government, Response to parliamentary question by the CDU, 2010869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22.

[43] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 27.

[44] Domradio.de, Aktuell viele Anfragen nach Kirchenasyl in NRW, 04 December 2022, available in German at: http://bit.ly/3kOQ9Ao.

[45] Federal Government, Response to parliamentary question by the AFD, 20/9673, 7 December 2023, available in German at: https://bit.ly/49FKoZC, 3.

[46] Domradio.de, Aktuell viele Anfragen nach Kirchenasyl in NRW, 04 December 2022, available in German at: http://bit.ly/3kOQ9Ao.

[47] Infomigrants, Ruling in church asylum case creates legal precedent in Germany, 04 Marcch 2022, available at: https://bit.ly/3wAt3jv.

[48] Taz.de, Nach Bruch des Kirchenasyls in Viersen: Doch keine Abschiebung, 25 July 2023, available in German at: https://bit.ly/3OPmRxz.

[49] ZEIT Online, Demonstration gegen Bruch des Kirchenasyls in Schwerin, 28 December 2023, avaialble in German at: https://bit.ly/48qRXTc.

[50] Ministry for Children, Youth, Family, Equality, Refugees and Integration of North Rhine Westphalia, Kirchenasyl in Dublin-Fällen, 9 November 2023, available in German at: https://bit.ly/49Hg4xX.

[51] Section 1a (3) asylum Seekers Benefits Act.

[52] Infomigrants, Bremen court ruling: Benefits can be cut for migrants receiving church asylum, 13 Decemeber 2023, avaialbel in German at: https://bit.ly/4bJIOba.

[53] ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[54] Federal Government, Response to parliamentary question by The Left, 19/31669, 04 August 2021, available in German at: https://bit.ly/4awfTGM, 117 et seq.

[55] Diakonie Deutschland, PRO ASYL & Informationsverbund Asyl & Migration, Das Dublin-Verfahren. Grundlagen, Verfahrensablauf und Praxistipps, January 2024, available in German at: https://bit.ly/42PClHq, 54.

[56] BAMF, Dienstanweisung Dublin (internal directive for Dublin procedures), version of December 2022, available in German at: https://bit.ly/3J5jPTA.

[57] Entscheiderbrief, 9/2013, 3.

[58] Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.

[59] BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 03 August 2021, available in German at: https://bit.ly/49mypAr, 104.

[60] Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.

[61] Section 77(2) Asylum Act.

[62] Dominik Bender and Maria Bethke, ‘‘Dublin III‘, Eilrechtsschutz und das Comeback der Drittstaatenregelung.’ Asylmagazin 11/2013, available in German at: https://bit.ly/4ar98Gl, 362.

[63] BverfG, Decision 2 BvR 157/17, 8 May 2017, asyl.net, available at: http://bit.ly/2G6rw9X.

[64] For an overview of court decisions on legal aid, see the database of asyl.net (search term ‚Prozesskostenhilfe‘).

[65] For more detailed information see the AIDA, Update on the implementation of the Dublin III Regulation in 2021, available at: https://bit.ly/3Djv5s2.

[66] AIDA, Country Report Germany – Update on the year 2022, April 2023, available at: https://bit.ly/48qcAPn, 56.

[67] AIDA, Country Report Germany – Update on the year 2021, April 2022, available at https://bit.ly/3XnN7RS, 85, and AIDA, Country Report Germany – Update on the year 2022, April 2023, available at https://bit.ly/48qcAPn, 57.

[68] Federal Government, Responses to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 5 and Federal Government, Reply to parliamentary question by The Left, 20/5870, 28 February 2023, available in German at: https://bit.ly/40KZhWi, 4.

[69] Diakonie Deutschland, PRO ASYL & Informationsverbund Asyl & Migration, Das Dublin-Verfahren. Grundlagen, Verfahrensablauf und Praxistipps, January 2024, available in German at: https://bit.ly/42PClHq, 34.

[70] Infomigrants, Croatia tightens border checks as Balkan migration route gets busier, 20 November 2023, available at: https://bit.ly/3Ue9lGM.

[71] Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, available in German at: https://bit.ly/3RTIGy4, 19.

[72] Justus Linz, Zur Situation von »Dublin-Rückkehrenden« und »Anerkannten« in Staaten Osteuropas, September 2022, asyl.net, available in German at:https://bit.ly/3JdJ7PH, 3.

[73] See Administrative Court of the Saarland, 5 L 837/23, 18 October 2023, asyl.net: M31916.

[74] Preliminary remark to Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, available in German at: https://bit.ly/4aqLV7g, 1.

[75] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 4; 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 47.

[76] Federal Government, Responses to parliamentary question by the CDU/CSU, 20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22-23.

[77] Federal Government, Response to parliamentary question by The Left, 20/9067, 2 November 2023, available in German at: https://bit.ly/3T30yHd, 29.

[78] Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 27.

[79] Federal Government, Response to parliamentary question by The Left, 20/861, 24 February 2022, 2; .19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 3.

[80] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 12; 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 11; 19/17100, 20 February 2020, available in German at: https://bit.ly/4aqLV7g, 59-60.

[81] Federal Government, Response to parliamentary question by the CDU, 2010869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22.

[82] Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, available in German at: https://bit.ly/3GSrxhM, 27.

[83] Federal Government, Responses to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 36.

[84] The BAMF letter is available in German at: https://bit.ly/4asyVO3.

[85] CJEU, Judgment in case C-163/17, Jawo, 19 March 2019, available at: https://bit.ly/304sXA2.

[86] Federal Constitutional Court, decision of 7 October 2019 – 2 BvR 721/19 – Asylmagazin 1-2/2020, S. 37 f. – asyl.net: M27758, available at: https://bit.ly/4auAtax.

[87] Informationsverbund Asyl und Migration, ‘BAMF führt Überstellungen nach Italien wieder „uneingeschränkt’ durch’, 29 March 2019, available in German at: https://bit.ly/2Uobbqu. For more information on the practice in previous years and corresponding jurisprudence see AIDA, Country Report Germany – Update on the year 2019, July 2020, available at: https://bit.ly/3hCWYOF, 36-37.

[88] ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.

[89] Federal Government, Responses to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 40-41.

[90] Oral discussion with AIDA partner NGO.

[91] Federal Administrative Court, Decision 1 B 22.23, 24 October 2023, asyl.net: M31979.

[92] Federal Government, Response to parliamentary question by the CDU/CSU,20/10869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 22-23.

[93] Der Tagesspiegel, Italien nimmt neun Flüchtlinge zurück: Berlin ruft EU-Kommission um Hilfe, 11 August 2023, available in German at: https://bit.ly/4bWBcCm.

[94] Bundesverfassungsgericht (BverfG), Decision 2 BvR 1380/19, 10 October 2019, asyl.net: M27757, available in German at: https://bit.ly/41xsDcd.

[95] Higher Administrative Court of North Rhine Westphalia, 11 A 1689/20.A, 20 July 2022, available in German at: https://bit.ly/3TsJL0Q.

[96] Federal Administrative Court, 1 B 66.21, 27 January 2022, asyl.net: M31153, available in German at: https://bit.ly/3M4fRvh.

[97] Informationsverbund Asyl & Migraiton, ‘Das »Dublin-Verfahren«.Die Zulässigkeitskeitsprüfung im Asylverfahren bei »Dublin-Fällen« und »Anerkannten«‘, available in German at: https://bit.ly/3K4StLy.

[98] Higher Administrative Court of Lower Saxony, 10 LA 77/22, 10 June 2022, asyl.net: M30785, available in German at: https://bit.ly/3tppIWn.

[99] Administrative Court of Greifswald, 3 A 1301/22 HGW, 17 November 2022, available in German at: https://bit.ly/4728c8w.

[100] Administrative Court of Braunschweig, 2 B 278/22, 1 December 2022, available in German at: https://bit.ly/3GSn2Ui.

[101] Higher Administrative Court of Schleswig-Holstein, 4 LB 4/23, 25 January 2024, available in German at https://bit.ly/4dYIWoq.

[102] Federal Government, Response to parliamentary question by the CDU, 2010869, 27 March 2024, available in German at: https://bit.ly/3TTUfVx, 25.

[103] Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 29.

[104] ECRE, The AnkER centres Implications for asylum procedures, reception and return, April 2019, available at: https://bit.ly/2W7dICZ.