In 2022, Germany sent a total of 68,709 outgoing requests to other Member States, mainly to Italy (14,439) Greece (9,166) and Austria (8,352). Germany received 15,744 requests, mainly from France (7,810), Belgium (1,730) and the Netherlands (1,441). This is a marked increase compared to 2021 where Germany had sent a total of 42,284 outgoing requests and received 14,233 incoming requests.
As regards transfers, they increased again after significantly decreasing during COVID-19 due to the relevant restrictions. In 2022, a total of 4,158 outgoing transfers were carried out, and Germany received a total of 3,700 incoming transfers. In 2021, there were 2,656 (2020: 2,953) outgoing and 4,274 incoming (2020: 4,369) transfers. Pre-Covid, transfer numbers were still higher than in 2022, however, with 8,423 outgoing and 6,087 incoming transfers in 2019.
Dublin statistics: 2022
|Outgoing procedure||Incoming procedure|
Source: Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 29.
Application of the Dublin criteria
The majority of outgoing Dublin requests was based on so-called ‘Eurodac hits’ in 2022 (68.6%), similar to previous years (69.9% in 2021 and 71.8% in 2020). Details on the criteria used for requests are only available for the outgoing requests which were based on ‘Eurodac hits’. In 2022 they referred to a total of 47,163 requests based on Eurodac, out of which:
- 30,682 (62.0%) after an application for international protection (CAT 1);
- 4,830 (27.0%) after apprehension upon illegal entry (CAT 2);
- 1961 (11.0%) after apprehension for illegal stay (CAT 3).
The number of transfers from other European countries to Germany was 3,700 in 2022, slightly lower than in previous years (4,274 in 2021, 4,369 in 2020) where they had already decreased in comparison to previous years (6,087 in 2019; 7,580 in 2018). The notable decrease in the numbers of transfers from Greece before and during the Covid-19 outbreak continued in 2022, with 212 transfers in 2022 (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 (208 out of 212) were carried out on the basis of the family unity provisions of the Dublin Regulation. The German government provided the following details on transfers carried out from Greece on the basis of family unity provisions:
|Incoming Dublin transfers from Greece: 2021|
|Criterion||Number of transfers|
|Unaccompanied children with family members or relatives: Article 8||135|
|Family members of beneficiaries of international protection: Article 9||17|
|Family members of asylum seekers: Article 10||8|
|Dependent persons: Article 16||2|
|Family reunification based on the humanitarian clause: Article 17(2)||46|
Source: Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 38.
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. 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. In 2020, in 743 cases Greece remonstrated the rejection by the BAMF. In the same year, the BAMF accepted 328 of such remonstrations. 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. In 2022, Greece remonstrated the rejection in 119 cases, and in 73 cases the BAMF accepted responsibility after such a remonstration.
The dependent persons and discretionary clauses
In 2022, the sovereignty clause was applied in 624 cases (compared to 665 cases in 2021 and 1,083 cases in 2020), resulting in an asylum procedure being carried out in Germany. Since government statistics on previous years do not contain exact information on the number of cases in which the humanitarian clause or the sovereignty clause has been used, a comparison over time is difficult. For 2019, available information only refers to 3,070 cases in 2019 in which either the use of the sovereignty clause or ‘de facto impediments to transfers’ resulted in the asylum procedure being carried out in Germany.
The Dublin Regulation is explicitly referred to as a ground for inadmissibility of an asylum application in the Asylum Act. The examination of whether another state is responsible for carrying out the asylum procedure (either based on the Dublin Regulation or 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 usually taken from all asylum seekers on the day that the application is registered and are systematically subjected to a Eurodac query. 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 an asylum seeker 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 Police. The Federal Police may also ask a court to issue a detention order if there is a considerable risk of ‘absconding’. This 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. 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. In previous years, there had been indications that there have also been Dublin procedures managed by the Federal Police in 2016, but the government denied this. For more information on applications at the border and practise of refusal of entry see Access to the territory and push backs).
In a ruling of the CJEU in Mengesteab on 26 July 2017, an important element concerning the time limits in the Dublin procedure was clarified with an important impact on the handling of Dublin procedures by German authorities. Before this decision, German authorities held that the time limit for sending a request to another country would start with the formal lodging of an asylum application (and not the initial registration of the intention to apply for asylum, see Making and registering the application). Furthermore, requests were frequently submitted to other states after the Dublin Regulation time limits for these requests had expired, in the hope that the other state would take charge of the procedure nevertheless. The CJEU made clear that both practices were incompatible with the Dublin Regulation: the time limit for Dublin requests thus starts with the moment that a Member State becomes aware of an asylum seeker’s intention to apply for asylum. If a Member State fails to submit a request within the time limits as defined in the Regulation, this Member State automatically becomes responsible for carrying out the procedure.
Since the Mengesteab judgment, the BAMF bases the time limits for issuing a ‘take charge’ 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 ‘take charge’ requests and has often rejected such requests on the basis that the deadlines of the Regulation have been exceeded.
On average, a Dublin procedure lasted 2.3 months in 2022. 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 22.1 months.
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. For an analysis of the examination of individualised guarantees and suspension of transfers in relation to specific countries see further underneath.
Transfers, absconding and ‘church asylum’
Transfers under the Dublin Regulation are usually carried out as removals and no deadline is set for ‘voluntary departure’ to the responsible Member State. Even if asylum seekers offer to leave Germany on their own, this is frequently not accepted and an escorted return is carried out instead.
Generally, in line with the Residence Act, dates of removals were not previously announced to asylum seekers in Dublin procedures. The police performed unannounced visits to places of residence e.g. reception centres with a view to apprehending the person and proceed to the transfer. In 2019, a deviation from this general practice was observed in AnkER centres in Bavaria. Following the issuance of the Dublin decision of the BAMF, the competent Central Aliens Office (Zentrale Ausländerbehörde, ZAB) notifies the applicant of the date and destination of the transfer and instructs them 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 ZAB 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. In August 2021, the Federal Administrative Court ruled this practice unlawful, as a sole absence at the time when the aliens’ office has ordered an applicant to be present cannot be interpreted as amounting to ‘absconding’. Rather, all circumstances of a case have to be taken into account.
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, parishes hosting persons who ought to be transferred can submit a dossier proving individual hardship to the BAMF and the BAMF will reconsider the case. The guidelines were updated on 1 August 2018, stating that an extension of the transfer deadline to 18 months for reasons of ‘absconding’ can be ordered for persons in church asylum under a number of circumstances, including where: (a) church asylum is not notified on the day it is provided; (b) the file is not transmitted to the BAMF within a four-week period to justify grounds of hardship; or (c) church asylum was only provided after a negative decision from the BAMF. These measures have been criticised by religious and refugee-supporting organisations, and run counter to the approach taken by courts. In a 2018 ruling, the Administrative High Court of Bavaria held, in line with the dominant position of domestic case law, that a person receiving church asylum whose whereabouts are reported to the BAMF cannot be considered as ‘absconding’ from the Dublin procedure. This was confirmed by a ruling of the Federal Administrative Court in 2020. The BAMF has adapted its practice and has clarified in January 2021 that persons in ‘open church asylum’ where their whereabouts are known are not considered to be absconding. This led to an increase in reported cases: in 2022, a total of 1,243 cases of ‘church asylum’ have been reported to the BAMF, up from 822 cases in 2021 and 335 in 2020. In only 12 cases, the BAMF decided to apply the sovereignty clause of the Dublin regulation and to conduct the asylum procedure in Germany. 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. As of 2 November 2022, according to the ecumenical Federal Working Group on Asylum in the Church, there were 314 active cases of church asylum involving 508 persons, out of which 112 were children. 294 out of the 314 cases concerned Dublin transfers. According to church activists, demand has been rising over the course of 2022, with far more requests than the participating churches can accommodate. 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.
In its Jawo ruling of 2019, the CJEU clarified that absconding ‘may be assumed (…) where the transfer cannot be carried out because the applicant has left the accommodation allocated to him without informing the competent national authorities of his absence, provided that he has been informed of his obligations in that regard’.
‘Absconding’ from the Dublin procedure also has repercussions on Reduction or withdrawal of reception conditions, which are systematically applied in AnkER centres in Bavaria in such cases, and can also constitute a ground for ordering Detention.
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. 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 finally been rejected as ‘inadmissible’ because another country was found to be responsible for the asylum procedure. In these cases, 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 these preconditions continue to be often ignored by authorities and courts in Dublin cases (in the same manner as in other cases of detention pending removal). 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).
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. More recent 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. For 2021, the Federal government reports that 110 Dublin transfers involved use of means of physical restraint by the police, compared to 129 in 2020.
There is no consistent practice for interviews in Dublin procedures. For the authorities a Dublin procedure means that responsibilities are referred 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 hearing 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 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 after the ‘Dublin interview’ to increase efficiency of the procedure. 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 may result in a shifting of focus away from the core issues of the personal interview.
Whereas before the outbreak of Covid-19, a face to face interview was mandatory for the admissibility interview, the reform of the Asylum Act through Act on the acceleration of asylum court proceedings and asylum procedures 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. There is no information as to whether video interviews were carried out in practice between 2020 and 2022.
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 the 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 Act on the acceleration of asylum court proceedings and asylum procedures, courts have discretion whether to hold personal hearings if the applicant is represented by a lawyer. However, a hearing must take place if the applicant requests so.
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 further underneath).
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.
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.
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 between January and end of November 2022. 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.).
|Decisions on requests for suspensive effect in Dublin appeals as of 30 November 2022|
|Country||Granting suspensive effect||Refusing suspensive effect|
Source: Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 34.
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.
Suspension of transfers
Suspension of transfers following the outbreak of the war in Ukraine
Germany issued Dublin transfer decisions to Poland, Slovakia, Romania, and the Czech Republic during the beginning of the war in Ukraine and displacement crisis, despite these countries suspending all incoming transfers following the outbreak of the war. German courts had varying opinions on the legality of these decisions, with some granting emergency suspension requests and others upholding the decisions. In May and June 2022, Poland and Romania lifted their suspensions on incoming transfers. Romania’s Dublin unit said it would gradually accept transfers with limited capacity, while Poland informed other member states that it would resume incoming transfers on August 1, 2022.
After the lifting of suspensions by the countries themselves, transfers can only be suspended if the situation in the destination country would amount to inhuman or degrading treatment. Jurisprudence continued to diverge on this question. Before the outbreak of the war, the administrative court of Weimar found that LGBTQI+ persons are subject to inhuman or degrading treatment in Poland as their vulnerability was not acknowledged in the asylum procedure, and considering heightened discrimination of homosexual persons in society. Other courts found no indications of such treatment for vulnerable persons or of systematic deficiencies in the Polish asylum system even after the arrival of millions of Ukrainian refugees. With regard to Bulgaria, courts generally agree that transfers under the Dublin regulation are lawful at least with regards to healthy, single adults. Regarding Lithuania, several administrative courts have granted interim measures in 2022 to prevent transfers on the ground of a real risk of inhuman or degrading treatment following the severe restrictions in the country’s asylum system in response to the crisis at the border with Belarus. Other courts have decided that transfers to Lithuania can take place. For jurisprudence on removals of beneficiaries of international protection see below. For Romania, some administrative courts have halted transfers referring to the lack of social assistance for families with minor children and the fact that asylum seekers whose application is considered a subsequent application upon return do not have access to social assistance, or that it cannot be established that deficiencies related to the influx of Ukrainian refugees do not persist, while the Higher Administrative Court of North Rhine Westphalia does not see systemic deficiencies in the Romanian asylum system as of 25 August 2022.
Dublin transfers during the Covid-19 pandemic
In 2020 and 2021, several decisions were taken with regard to Dublin transfers at the federal level (suspensions, testing requirements, etc). However, no updated information is available for the year 2022 as transfers are operated by the Federal States and there are no longer unified testing requirements.
When suspending transfers in 2020, the BAMF also suspended the time limit within which the transfer has to take place in order for Germany to not be responsible for the application. This suspension was contested by the European Commission, stating that the Dublin regulation provides no legal basis for such a suspension, as well as by neighbouring countries and German administrative courts. The CJEU was called to give a preliminary ruling on the matter by the Federal Administrative Court. The ruling, issued on 22 September 2022, found that the suspension does not interrupt the six-month time limit. As of 4 August 2020, the BAMF decided to no longer hold on to the suspension. Persons whose transfer period had expired due to the Covid-19 related travel restrictions could enter the national asylum procedure. This did not apply however to applicants with an ongoing appeal procedure. As of 20 May 2021, the transfer period had expired for a total of 9,329 persons due to the Covid-19 pandemic. As a result of the suspensions, the number of transfers was significantly lower in 2020 compared to 2019, with 2,953 transfers in 2020 compared to 8,423 in 2019.
Suspension of transfers and individualised guarantees for specific Member States
Croatia: Several administrative courts have halted Dublin transfers to Croatia, referring to illegal push-backs of asylum seekers to Bosnia Herzegovina and Serbia and police violence against asylum seekers, while other courts see no danger of push backs for returnees from Germany (for an overview see tables above and below). With a total of 95 transfers compared to 4,657 outgoing requests and 3,276 cases accepted by Croatia, the ratio of transfers to requests was much lower than the average of all member states.
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. 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 and the conditions especially in ‘transit centres’. 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 2022 and 2021. Whereas no Dublin transfers to Hungary took place between 11 April 2017 and the end of 2020, one person was transferred to Hungary in 2021, with an individualised guarantee issued by the Hungarian authorities, And 8 transfers took place in 2022. 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 (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. 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). However, no transfer was carried out in 2022, only one in 2021 and 4 in 2020 (compared to 20 in 2019). 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. In 2022, no such individualised guarantees were issued according to the Federal Government. For transfers of persons who have received a protection status in Greece, see below.
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. Transfers to Italy are systematically ordered, including for vulnerable persons such as pregnant women or persons with severe mental health conditions. 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’. On 24 January 2023, the administrative court of Arnsberg (North Rhine Westphalia) 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. However NGOs report that the BAMF continues to issue Dublin transfer decisions as of March 2023, even though Italy did not accept the transfers in most cases.
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. 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, 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.
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, which is mainly due 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 2022. 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. 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, the administrative court of Braunschweig expects the situation to worsen.
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:
|Examples of Administrative Court rulings on Dublin transfers and transfers of persons with protection status in another European country: 2022|
|Country||Halting transfer||Upholding transfer|
|Bulgaria||Administrative Court of Potsdam, 12 K 2418/20. A, 11 January 2022
Administrative Court of Trier, 6 K 2497/21.TR, 25 January 2022
Administrative Court of Cologne, 13 L 589/22. A, 21 April 2022
Administrative Court of Würzburg, W 2 K 22.30046, 8 June 2022
Administrative Court of Magdeburg, 2 A 43/21 MD, 7 July 2022
|Higher Administrative Court of North Rhine Westphalia, 11 A 1625/21. A, 15 February 2022
Administrative Court of Munich, M 5 S 22.50115, 15 March 2022
Administrative Court of Augsburg, Au 8 S 22.50178, 1 August 2022
Administrative Court of Karlsruhe, A 19 K 2565/22, 27 September 2022
|Croatia||Administrative Court of Braunschweig, 2 B 27/22, 25 February 2022
Administrative Court of Braunschweig, 2 A 26/22, 24 May 2022
Administrative Court of Freiburg, A 1 K 1805/22, 26 July 2022
Administrative Court of Stuttgart, A 16 K 3603/22, 2 September 2022
Administrative Court of Hanover, 15 B 3250/22, 7 September 2022
|Administrative Court of Munich, 4 January 2022
Administrative Court of Hanover, 7 B 6223/21, 31 January 2022
Administrative Court of Minden, 12 L 847/21. A, 1 February 2022
Administrative Court of Hamburg, – 16 AE
Administrative Court of Cologne, 2 L 1005/22. A, 27 June 2022
|Greece (only with regard to beneficiaries of international protection)||Higher Administrative Court of Baden-Württemberg, A 4 S 2443/21, 27 January 2022
Administrative Court of Oldenburg, 11 A 3608/21, 14 March 2022
Higher Administrative Court of Saxony, 5 A 492/21. A, 27 April 2022
|Hungary||Administrative Court of Bremen, 3 K 491/18, 6 April 2022
Administrative Court of Aachen, 5 K 3571/18. A, 11 April 2022
Administrative Court of Munich, M 6 K 18.33184, 10 May 2022
Administrative Court of Munich, M 10 S 22.50218, 18 July 2022
Administrative Court of Arnsberg, 1 L 827/22. A, 13 September 2022
|Administrative Court of Bremen, 6 V 987/21, 20 January 2022
Administrative Court of Hannover, 5 A 3610/18, 07 February 2022
Administrative Court of Düsseldorf, 12 K 971/22. A, 16 February 2022
Administrative Court of Gelsenkirchen, 1a K 2967/19. A, 22 February 2022
Administrative Court of Münster, 10 K 585/22. A, 3 March 2022
Administrative Court of Halle, 4 B 219/22 HAL, 20 May 2022
Administrative Court of Trier, 6 K 439/21.TR, 24 August 2022
Administrative Court of Münster, 10 K 2572/21. A, 1 September 2022
Administrative Court of Braunschweig, 2 B 278/22, 1 December 2022
|Higher Administrative Court of Saarland, 2 A 46/21, 15 February 2022
Higher Administrative Court of Saxony, 4 A 341/20. A, 14 March 2022
Administrative Court of Cottbus,
5 K 754/19. A, 8 September 2022
Administrative Court of Greifswald, 3 A 1301/22 HGW, 17 November 2022
|Lithuania||Administrative Court of Hanover,
12 B 6475/21, 23 February 2022
Administrative Court of Munich, M 10 S 22.50244, 17 June 2022
Administrative Court of Weimar, 6 E 1610/21 We, 9 August 2022
Administrative Court of Berlin, 22 L 258/22. A, 7 October 2022
Administrative Court of Arnsberg, 13 L 900/22. A, 19 October 2022
Administrative Court of Hannover, 3 B 4452/22, 1 November 2022
|Administrative Court of Augsburg, Au 5 S 22.50008, 22 February 2022
Administrative Court Greifswald, 6 B 367/22 HGW, 21 March 2022
Administrative Court of Berlin, 21 K 3/22 A 3 May 2022
|Romania||Administrative Court of Bremen, 1 K 1022/19, 02 March 2022
Administrative Court of Braunschweig, 6 A 321/21, 22 March 2022
Administrative Court of Düsseldorf, 22 L 526/22. A, 4 May 2022
Administrative Court of Arnsberg, 8 L 359/22. A, 28 July 2022
|Higher Administrative Court of North Rhine Westphalia, Decision 11 A 861/20. A, 25 August 2022, asyl.net: M30995.
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.
Suspension of transfers for beneficiaries of international protection in other Member States
Many court decisions which have been published in recent years deal with cases of persons who have been granted international protection in other European states such as Bulgaria, Greece, Hungary or Italy. In many of these cases, transfers were suspended by courts on the grounds that a risk of inhuman or degrading treatment could not be excluded for beneficiaries of international protection in these countries. However, similarly to the existing case law on ‘systemic deficiencies’, the case law on this issue was not consistent and other courts upheld transfers of beneficiaries of international protection to Bulgaria or Italy, while the majority of courts do not consider transfers to Greece to be lawful (see also below).
On 1 August 2022, the CJEU established in a preliminary ruling that the asylum applications of a child born in one Member states (in this case Germany) whose parents have been granted protection in another Member State (in this case Poland) cannot be rejected as inadmissible. The request was made by the Administrative Court of Cottbus (Brandenburg), based on a BAMF decision that such an application was inadmissible on the grounds that Poland was responsible for conducting the asylum procedure under the Dublin regulation. According to the CJEU, this ground for inadmissibility cannot be applied analogously to cases where international protection has already been granted to family members.
In October 2019, the Federal Constitutional Court defined some important standards concerning transfers of persons who have already been granted 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, the court held that authorities and courts in Germany had to examine this point when deciding about the possibility of a transfer.
Between 2019 and April 2022, the BAMF ‘de-prioritised’ cases from applicants who had already been granted international protection in Greece, meaning applications were de facto not processed, which left applicants in legal limbo, retaining the status of asylum seekers. In 2021, the Higher Administrative Courts of Lower Saxony and of North Rhine Westphalia ruled that persons with a protection status cannot be sent back to Greece as this would amount to inhuman or degrading treatment. The Higher Administrative Court of Lower Saxony ruled that the applicants, two unmarried sisters, were likely to be homeless upon return to Greece due to the lack of state and non-state assistance regarding housing, the lack of access to social benefits and the high administrative and practical hurdles to find gainful employment. The Higher Administrative Court of North Rhine Westphalia ruled that it would be highly unlikely for the applicants to find accommodation and gainful employment in Greece and that access to social benefits was only possible after two years of residence proven with a tax declaration. Regarding the threshold for human or degrading treatment, the Federal Administrative Court ruled in September 2021 that all available support to individuals, including support by NGOs and other non-state actors and the applicants’ own efforts are to be taken into account for the assessment of each individual situation. In July 2021, the German and Greek ministers of the Interior signed a memorandum of understanding aimed at improving the integration of beneficiaries of international protection in Greece regarding accommodation, health care and the provision of necessary goods through a project implemented by the IOM and financed by EU and German funds. In March 2022, it was reported that an agreement was reached, and that accordingly the BAMF was planning on starting to examine the pending cases. Decisions of the Higher Administrative Courts of Baden-Württemberg and Saxony in 2022 confirmed that beneficiaries cannot be sent back to Greece, and that their applications cannot be deemed inadmissible for the reason that protection has been granted in another Member State (see also Admissibility procedure).
The BAMF took up the processing of applications again on 1 April 2022. The BAMF stated that it planned to assess each case again on its merits, instead of accepting the decision to grant international protection from another Member State, and to only deem applications inadmissible “in justified individual cases” where no threat of violation of Art. 3 or 4 ECHR exists. On 31 December 2022 12,500 asylum applications of persons who are likely to already have a protection in Greece were pending at the BAMF. This is much lower than in December 2021 (39,000), but still a significant backlog. In 2022, 14,053 applications for international protection were filed by persons who had already been granted protection in Greece, compared to 19,805 such applications in 2021. Syrians and Afghans make up more than two thirds of these applicants. Over the course of 2022, the BAMF decided on a total of 43,091 such applications, out of which 4,983 were rejected although protection had been granted by Greek authorities. Some administrative courts have confirmed this decision, arguing that the BAMF is not bound by decisions of the Greek asylum authorities. This question has been put before the CJEU in a request for preliminary ruling in September 2022.
In 2022, a total of 72 removals of non-Greek nationals took place to Greece, but the removal statistics do not give indications on the residence status or nationality of persons returned.
Regarding removals to Bulgaria, most courts are of the opinion that removals of beneficiaries of protection are lawful. By way of exception, some administrative courts have found – in the case of the administrative court of Potsdam even before the outbreak of the war in Ukraine – that even non-vulnerable persons face destitution and homeless upon arrival. The Federal State government of Lower Saxony issued guidance on 21 February 2022 according to which transfers are only admissible for healthy persons who are fit to work, and not for single parents, families with minor children and persons unable to work.
For Hungary, in 2022, a number of administrative courts have found that the situation of beneficiaries of international protection in Hungary bears the danger of violating Art. 3 ECHR or Art. 4 CFR as beneficiaries are likely not able to ensure a minimum of existence.
For Poland, jurisprudence is unclear as of January 2023, with the administrative court of Hannover deciding against removal in June 2022 on the basis that capacities in Poland are overstretched due to the reception of Ukrainian refugees, while the administrative court of Würzburg found no indication of inhuman or degrading treatment for beneficiaries of international protection in April 2022.
A transfer of beneficiaries of international protection to Romania was halted by the Federal Constitutional Court in July 2022, which held that the competent administrative court had not properly assessed the situation on the ground in light of the changed situation after the outbreak of the war in Ukraine. The Higher Administrative Court of North Rhine Westphalia asked the Swiss Refugee Council to assess the situation in April 2022, and found in a judgement of 25 August 2022 that no danger of inhuman or degrading treatment exists.
A list of court cases dealing with transfers of beneficiaries of international protection can be found online.
The situation of Dublin returnees
Germany received 3,700 transfers in 2022, compared to 4,274 in 2021, 4,369 in 2020 and 6,087 in 2019. Dublin transfers are usually carried out individually through commercial flights.
In 2022, the highest number of incoming requests towards Germany occurred from France, Belgium and the Netherlands. 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.
 Federal Government, Responses to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 3, 20/861, 24 February 2022, 2, 19/30849, 21 June 2021, 3.
 Article 9 recast Eurodac Regulation.
 Article 14 recast Eurodac Regulation.
 Article 17 recast Eurodac Regulation.
 Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, 44.
 Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, 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.
 Federal Government, Response to parliamentary question by The Left, 20/5868, 28 February 2023, available in German at: https://bit.ly/3TFefdY, 10; 20/861, 24 February 2022, 10; 19/30849, 21 June 2021, 9.
 Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 12.
 Section 29(1)(a) Asylum Act.
 Federal Government, Response to parliamentary question by The Left, 18/13428, 18 August 2017, 23-24.
 Case C-670/16 Mengesteab, Judgment of 26 July 2017. See Constantin Hruschka, ‘Zu EuGH, Mengesteab sowie Shiri: Dublin-Fristen unmittelbar wirksam und gerichtlich voll überprüfbar’, Asylmagazin 1-2/2018, 46-49.
 BAMF, Entscheiderbrief (newsletter for decision-makers) 9/2021, 5-6.
 Information provided by the BAMF, 1 August 2017.
 Section 59(1) Residence Act.
 AIDA, ‘Germany: Measures restricting ‘church asylum’ contradict case law’, 31 August 2018, available at: https://bit.ly/2V1pSg4; Informationsverbund Asyl und Migration, ‘Rechtsprechungsübersicht zum Kirchenasyl in Dublin-Fällen’, 27 February 2019, available in German at: https://bit.ly/2F1XP9K.
 BAMF, ‘Merkblatt Kirchenasyl im Kontext von Dublin-Verfahren’, August 2021 availabe in German at https://bit.ly/3HY47WI. See also PRO ASYL, ‚ Bundesverwaltungsgericht entscheidet: Kein »Flüchtigsein« im offenen Kirchenasyl!‘, available in German at https://bit.ly/3fi5Rhd.
 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, 18; 19/30849, 21 June 2021, 25.
 CJEU, Case C-163/17 Jawo, Judgment of 19 March 2019, para 70.
 Federal Government, Response to parliamentary question by The Left,19/31669, 04 August 2021, 117 et seq.
 Federal Government, Response to parliamentary question by The Left, 20/890, 02 March 2022, 28.
 Entscheiderbrief, 9/2013, 3.
 Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.
 BAMF, Dienstanweisung Asyl (internal directive for asylum procedures), 03 August 2021, 104
 Official Gazette I no. Nr. 56 (2022) of 28 December 2022, 2817.
 Section 77(2) Asylum Act.
 Dominik Bender and Maria Bethke, ‘‘Dublin III‘, Eilrechtsschutz und das Comeback der Drittstaatenregelung.’ Asylmagazin 11/2013, 362.
 For further information, see Informationsverbund Asyl & Migration, ‘Overview: Effects of the Ukraine War on Dublin Renditions’, 1 June 2022, available at: https://bit.ly/3pXFfqY; and ‘Update: Effects of the Ukraine War on Dublin Renditions’, 14 July 2022, available at: https://bit.ly/3PXtRGg.
 Informationsverbund Asyl & Migration, ‘Overview: Effects of the Ukraine War on Dublin Renditions’, 1 June 2022, available at: https://bit.ly/3pXFfqY; and ‘Update: Effects of the Ukraine War on Dublin Renditions’, 14 July 2022, available at: https://bit.ly/3PXtRGg.
 Administrative Court of Weimar, 3 E 1408/21, 6 January 2022 – asyl.net: M30364.
 Administrative Court of Wiesbaden, 3 K 1656/18.WI.A, 6 May 2022; Administrative Court of Munich, M 30 S 22.50276, 27.5.2022
 Higher Administrative Court of Baden-Württemberg, A 4 S 162/22, 24 February 2022 – asyl.net: M30517; Administrative Court of Saarland, 5 L 63/22, 2 March 2022 – asyl.net: M30512; Administrative Court of München, M 5 S 22.50150, 24 March 2022.
 See table below for an overview.
 Administrative Court of Bremen, 1 K 1022/19, 02 March 2022.
 Administrative Court of Braunschweig, 6 A 321/21, 22 March 2022 – asyl.net: M30525.
 Administrative Court Arnesberg, Decision 8 L 359/22.A, 28 July 2022, asyl.net: M30804.
 Higher Administrative Court of North Rhine Westphalia, Decision 11 A 861/20.A, 25 August 2022, asyl.net: M30995.
 CJEU, Cases C-245/21 and C-248/21.
 Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, 47.
 Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, 19.
 Preliminary remark to Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 1.
 Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, 27.
 Federal Government, Response to parliamentary question by The Left, 20/861, 24 February 2022, 22,.19/30849, 21 June 2021, 3.
 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, 11; 19/17100, 20 February 2020, 59-60.
 Federal Government, Response to parliamentary question by The Left, 19/30849, 21 June 2021, 27.
 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.
 Oral discussion with AIDA partner NGO.
 Bundesverfassungsgericht (BverfG), Decision 2 BvR 1380/19, 10 October 2019, asyl.net: M27757.
 Higher Administrative Court of North Rhine Westphalia, 11 A 1689/20.A, 20 July 2022.
 Federal Administrative Court, 1 B 66.21, 27 January 2022, asyl.net: M31153.
 Higher Administrative Court of Lower Saxony, 10 LA 77/22, 10 June 2022, asyl.net: M30785
 Administrative Court of Greifswald, 3 A 1301/22 HGW, 17 November 2022.
 Administrative Court of Braunschweig, 2 B 278/22, 1 December 2022
 Informationsverbund Asyl & Migration, Vorlage des BVerwG an den EuGH: Ist das BAMF an die Schutzzuerkennung durch andere EU-Staaten gebunden?, 21 September 2022, available in German at http://bit.ly/407ZvXV
 Federal Constitutional Court, decision of 7 October 2019 – 2 BvR 721/19 – Asylmagazin 1-2/2020, S. 37 f. – asyl.net: M27758.
 Higher Administrative Court of North Rhine Westphalia, Decisions 11 A 1564/20.A and 11 A 2982/20.A of 21 and 26 January 2021 and Higher Administrative Court of Lower Saxony, Decisions 10 LB 244/20 and 10 LB 245/20, 19 April 2021, see also PRO ASYL, ‘Bett, Brot, Seife – Ein ferner Traum für Flüchtlinge in Griechenland’, available in German at https://bit.ly/3FzB4Y9
 Federal Ministry of the Interior, ‘Gemeinsame Absichtserklärung zu Bemühungen um die Integration von Personen mit internationalem Schutzstatus in Griechenland’, available in German at at https://bit.ly/3KeKziO
 Higher Administrative Court of Baden-Württemberg, A 4 S 2443/21, 27 January 2022, Higher Administrative Court of Saxony, 5 A 492/21.A, 27 April 2022.
 Informationsverbund Asyl & Migration, Vorlage des BVerwG an den EuGH: Ist das BAMF an die Schutzzuerkennung durch andere EU-Staaten gebunden?, 21 September 2022, available in German at http://bit.ly/407ZvXV.
 Federal Administrative Court (BVerwG), Decision of 7 September 2022 – 1 C 26.21 – asyl.net: M30943; to monitor the progress of the request, see case C-753/22 before the CJEU, available at: http://bit.ly/3KbQp6T.
 Administrative Court of Potsdam, 12 K 2418/20.A, 11 January 2022, Administrative Court of Ansbach, 14 S 22.50126, 31 October 2022; Administrative Court of Köln, 20 K 3733/22.A, 15 November 2022; Administrative Court of Freiburg, A 14 K 900/22, 19 September 2022. See also Justus Linz, Zur Situation von »Dublin-Rückkehrenden« und »Anerkannten« in Staaten Osteuropas, September 2022, asyl.net, 3, available in German at https://bit.ly/3JdJ7PH.
 Administrative Court of Bremen, 3 K 491/18, 6 April 2022, Administrative Court of Aachen, 5 K 3571/18.A – asyl.net: M30632, Administrative Court of Munich, M 6 K 18.33184, 10 May 2022, asyl.net:
 Administrative Court of Hannover, 15 B 371/22.A, 27 June 2022, asyl.net: M30777.
 VG Würzburg, W 1 K 22.30178, 6 April 2022, see also Justus Linz, Zur Situation von »Dublin-Rückkehrenden« und »Anerkannten« in Staaten Osteuropas, September 2022, asyl.net, 3, available in German at https://bit.ly/3JdJ7PH.
 Federal Constitutional Court (BVerfG), 2 BvR 961/22, 19 July 2022, asyl.net: M30822.
 Higher Administrative Court of North Rhine Westphalia, Decision 11 A 861/20.A, 25 August 2022, asyl.net: M30995.