Dublin

Germany

Country Report: Dublin Last updated: 30/11/20

Author

Informationsverbund Asyl und Migration Visit Website

General 

Dublin statistics: 2019

 

Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

48,847

8,423

Total

23,717

6,087

Italy

14,175

2,575

France

11,194

2,022

Greece

9,870

20

Netherlands

3,116

1,125

France

5,021

1,212

Belgium

1,934

301

Sweden

2,603

565

Greece

1,684

730

Spain

2,827

591

Italy

1,325

221

Poland

1,981

508

Switzerland

997

444

Netherlands

1,916

571

Austria

835

433

Austria

1,638

517

United Kingdom

794

115

Switzerland

1,215

375

Sweden

429

246

Bulgaria

851

21

Denmark

250

117

Belgium

823

293

Ireland

219

1

Denmark

766

149

Luxembourg

187

100

Portugal

733

193

Portugal

89

16

Czech Rep.

613

179

Finland

71

33

Romania

585

83

Slovenia

68

12

Croatia

565

29

Czech. Rep.

66

23

Finland

491

150

Malta

66

1

Lithuania

478

70

Norway

62

53

Slovenia

347

88

Poland

57

29

Norway

331

207

Croatia

55

6

Malta

264

16

Cyprus

49

3

Latvia

241

54

Hungary

32

11

Slovak Rep.

121

39

Iceland

32

10

United Kingdom

118

22

Bulgaria

28

8

Luxembourg

92

11

Lithuania

28

9

Estonia

76

5

Spain

25

5

Cyprus

54

2

Romania

16

6

Hungary

32

0

Liechtenstein

5

3

Iceland

14

0

Slovak Rep.

3

4

Ireland

5

4

Latvia

1

0

Liechtenstein

1

0

Estonia

0

0

             

 

Source: Federal Government, Response to parliamentary information request by The Left, 19/17100, 20 February 2020, 52, Update

 

The number of outgoing requests decreased from 2018 to 2019, but it was still high in comparison with previous years:

Outgoing Dublin requests from Germany

Year

2013

2014

2015

2016

2017

2018

2019

Requests

35,280

35,115

44,982

55,690

64,267

54,910

48,847

Source: Federal Government, Responses to parliamentary questions from 2013 to 2019.

 

Application of the Dublin criteria

 

The majority of outgoing Dublin requests was based on so-called “Eurodac hits” (64.6% in 2019, in comparison to 65.4% in 2018, 65.1% in 2017, 69.2% in 2016, 76% in 2015, 68.5% in 2014, 66.7% in 2013 and 72.8% in 2012).[1] Details on the criteria used for requests are only available for the outgoing requests which were based on “Eurodac hits”. Statistics for 2019 refer to a total of 31,544 requests based on Eurodac, out of which:

  • 25,159 (79.8%) after an application for international protection (CAT 1);[2]
  • 3,737 (11.8%) after apprehension upon illegal entry (CAT 2);[3]
  • 2,648 (8.4%) after apprehension for illegal stay (CAT 3).[4]

The number of transfers from other European countries to Germany decreased from 7,580 in 2018 to 6,087 in 2019. This decrease was particularly notable in the numbers of transfers from Greece (730 transfers in 2019 compared to 3,495 in 2018). The overwhelming majority of transfers from Greece (690 out of 730) were carried out on the basis of the family unity provisions of the Dublin Regulation. The German government provided following details on the transfers carried out from Greece:

Incoming Dublin transfers from Greece: 2019

Criterion

Number of transfers

Unaccompanied children with family members or relatives: Article 8

205

Family members of beneficiaries of international protection: Article 9

325

Family members of asylum seekers: Article 10

114

Dependent persons: Article 16

22

Family reunification based on the humanitarian clause: Article 17(2)

23

Family procedure: Art. 11 a)

1

Others

40

Total

730

Source: Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 64.  

 

The decrease in transfers from Greece can partly be explained by the fact that a backlog of family reunification cases had been cleared in 2018. In February 2018 some 3,100 asylum seekers for whom Germany had already accepted “take charge” requests had still been waiting for their transfer.[5]

Another important reason for the decrease in transfers from Greece is that the BAMF has been handling applications for family reunification under the Dublin regulation more restrictively in comparison to former years. It has been reported that 75% of incoming Dublin requests from Greece were rejected by the German authorities in the first half or 2019, often 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.[6]

The dependent persons and discretionary clauses

The government's statistics do not contain exact information on the number of cases in which the humanitarian clause or the sovereignty clause has been used. 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.[7]

During the year 2015, Syrian nationals had been exempted from transfers under the Dublin Regulation. However, given that there is no more distinction made between Syrians and other nationalities as far as Dublin procedures are concerned, 549 Syrians were transferred to other countries in 2018 (representing 6% of all transfers). In 2019, 310 transfers of Syrian nationals took place, this represented 3.7% of all transfers.[8]

 

Procedure

 

The Dublin Regulation is explicitly referred to as a ground for inadmissibility of an asylum application in the Asylum Act.[9] 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 they are subjected to Eurodac queries on a routine basis. 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. However, there are indications that there have also been Dublin procedures managed by the Federal Police in 2016.[10] The German government confirmed in August 2017 that Dublin procedures had been taking place at the border.[11] However, in contrast to earlier reports, the government explained in this statement that these Dublin procedures were not carried out by the Federal Police. According to the statement, 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 then is carried out by the BAMF which can issue a deportation 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. Furthermore, in 2018 a new procedure was introduced at the Austrian-German border which enables the Federal Police to refuse entry at the border without applying the Dublin Regulation. This procedure is based on readmission agreements with Spain and Greece, but it apparently has not been applied in many cases (see Access to the territory and push backs). This new procedure seems to have replaced the practice of Dublin procedures managed by the Federal Police as described above, but it cannot be ruled out that other “improvised” procedures resulting in forced returns are still carried out at the border.

In a ruling of the CJEU in Mengesteab on 26 July 2017, an important element of the Dublin procedure has been clarified with an important impact on the handling of Dublin procedures by the German authorities. Before this decision the German authorities held that the time limit for sending a request to another country would start with the lodging of an asylum 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.[12]

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.

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.[13]

Even before the ECtHR’s ruling in the case of Tarakhel v. Switzerland,[14] the Federal Constitutional Court (BVerfG) had decided that the BAMF has to take precautionary measures against possible health risks in cases of deportations or transfers to other states. With regard to transfers to Italy, the Constitutional Court specified that children up to the age of three might face such health risks because of scarce capacities of the Italian reception system and possible homelessness. Therefore, the Constitutional Court obliged the BAMF to make sure, in coordination with the Italian authorities, that families with children up to the age of three would have access to accommodation in case of transfers to Italy.[15] The BAMF therefore had to request individual guarantees for these families from the Italian authorities. According to the Federal Government, no transfers to Italy were carried out in 2018  if families and children aged less than three-years-old were concerned.[16] However, this policy has been terminated as of March 2019 following the latest Circular of the Italian Dublin Unit dated 8 January 2019, which informed all Member States that families with children are accommodated in the same first reception centres and temporary reception centres as other asylum seekers.[17] This practice was maintained throughout 2019, according to the government. Apparently, the BAMF still asks the Italian authorities for individualised guarantees concerning families with children below the age of three years, but it has not made it fully clear whether this is a routine procedure in all of these cases.[18]

In March 2017, the Administrative Court of Trier halted the transfer of a pregnant woman to Italy and stated that German asylum authorities have to obtain individualised guarantees in all cases of possible transfers of vulnerable persons to Italy.[19] Similar decisions were issued in 2018. In the last quarter of 2018, some courts ruled that requests for individual guarantees had to be submitted for vulnerable persons, especially because the situation in Italy had become less predictable for Dublin returnees in the light of the 2018 legislative reform.[20] However, the High Administrative Court of Bavaria held that a pregnant woman would not be at risk of inhuman or degrading treatment following her transfer to Italy, hereby confirming the ruling of the Administrative Court of Munich.[21]

Similar divisions were noted in jurisprudence in 2019, with several courts holding that the BAMF could be obliged to obtain individualised guarantees from Italy, e.g. in cases of families (including families with children older than 3 years),[22] pregnant women,[23] and with regard to persons with serious medical conditions.[24] Other courts disagreed and generally held that conditions in Italy would not lead to particular risks for Dublin returnees, which rendered individualised guarantees unnecessary (these decisions included cases with young children,[25] and pregnant women).[26]

Currently, the BAMF requests individual guarantees for all transfers to Hungary and Greece, to ascertain whether asylum seekers will be treated in accordance with the Asylum Directives.[27] This policy has led to a standstill in transfers to Hungary since May 2017, as the Hungarian authorities have not submitted individual guarantees.[28] As regards Greece, Germany has issued a comparably  high number of take charge requests (9,807) and received 574 positive replies from the Greek authorities which apparently were combined with individualised guarantees.  However, only 20 transfers were carried out in 2019. The BAMF was informed by the Greek authorities that all persons transferred were issued a temporary residence permit upon arrival in Greece and were accommodated either in reception centres (Camp Eleonas, Camp Shisto) or in private apartments. One transferred person was reported to have left Greece for his country of origin after having participated in a voluntary return programme.[29]

The Federal Constitutional Court defined some important standards concerning Dublin transfers in a ruling of October 2019. According to the Federal Constitutional Court, 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 in Greece. 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,[30] the court held that authorities and courts in Germany had to examine this point when deciding about the possibility of a transfer.[31] This decision might also influence the question of whether individualised guarantees by the Greek authorities can be considered to provide sufficient protection from possible inhuman treatment.

Transfers

Transfers under the Dublin Regulation are usually carried out as deportations since 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,[32] dates of deportations 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 has been 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 him or her to be present in his or her 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 his or her 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.

The extension of the deadline to 18 months has been heavily debated in the context of “church asylum” (Kirchenasyl), the temporary sanctuary offered by religious institutions to protect people facing deportation from undue hardship. The new guidelines of the Federal Office for Migration and Refugees (BAMF) which took effect on 1 August 2018 state that an extension of the transfer deadline to 18 months for reasons of “absconding” can be ordered 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.[33] 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.[34]

In its recent ruling in Jawo, the CJEU clarified that absconding “may be assumed that that is the case where the transfer cannot be carried out due to the fact that 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”.[35]

“Absconding” from the Dublin procedure also has repercussions on Reduction and 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.[36]

There are no publicly available statistics on how many Dublin transfers are preceded by detention. 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 deportation. 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 deportation). 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.

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.[37] 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.[38]

 

Personal interview

 

A personal interview is mandatory.[39] 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 take place at various stages of the procedure. In practice, the Dublin and regular procedure are carried out simultaneously, therefore a regular interview is conducted according to the standards of the Regular Procedure: Personal Interview. 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.

If a Dublin procedure is initiated before the “regular” interview, the BAMF may only carry out a “personal conversation” (sometimes also referred to as the “Dublin interview”) with the asylum seeker. In this “conversation” only facts relevant for the Dublin procedure are established. Accordingly, the asylum seekers are not questioned on the reasons for their asylum applications. However, they should be given an opportunity to provide possible reasons why a deportation to another Dublin state could be impeded (e.g. existence of relatives in Germany). 

 

Appeal

 

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

It is possible to lodge an appeal against a Dublin decision at 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.

Material requirements for a successful appeal remain difficult to fulfil and the way these requirements have to be defined in detail remains a highly controversial issue. For example, administrative courts in the Federal States continue to render diverging decisions with regard to the question of 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 application for suspensive effect has to 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.[40]

In May 2017, the Federal Constitutional Court established some general standards for the appeal procedure in Dublin cases and cases of deportations 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 deportation 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 deportation. 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.[41]

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 November 2019. 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, Jan- Nov 2019

Country

Granting suspensive effect

Refusing suspensive effect

Belgium

30

261

Bulgaria

90

137

Denmark

58

213

Estonia

3

29

Finland

24

138

France

171

1,3461

Greece

125

129

UK

1

13

Ireland

0

1

Iceland

2

2

Italy

1,762

4,951

Croatia

20

169

Latvia

13

95

Lithuania

31

178

Luxemburg

1

5

Malta

14

66

Netherlands

82

463

Norway

20

115

Austria

26

420

Poland

106

767

Portugal

28

249

Romania

77

287

Sweden

113

599

Switzerland

24

307

Slovakia

17

89

Slovenia

24

120

Spain

141

866

Czech Republic

38

274

Hungary

7

19

Cyprus

4

16

 

Source:  Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 58. Note that the Government does not give a total number of these decisions and explains that these figures do not represent official statistics. Rather, they were produced on the basis of the BAMF’s internal document management system. Therefore, deviations from court statistics are possible.

 

Legal assistance

 

There are no specific regulations for legal assistance in Dublin procedures; therefore the information given in relation to the section on Regular Procedure: 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

 

Hungary: According to information provided by the BAMF, 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 Asylum Procedures Directive.[42] As a result, no Dublin transfers to Hungary have taken place since 11 April 2017.[43] 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 requests were sent to Hungary also in 2019.

Greece: A formal suspension of transfers to Greece, which had been in place for several years, ended in March 2017. In 2019, Germany sent a comparably high number of take charge requests to Greece (9,807) and received 574 positive replies from the Greek authorities which apparently were combined with individualised guarantees. However, only 20 transfers were carried out in 2019.[44] In addition, nine persons were deported to Greece between August 2018 and January 2019 on the basis of an administrative agreement between Germany and Greece .

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.[45] Transfers to Italy are systematically ordered, including for vulnerable persons such as pregnant women or persons with severe mental health conditions.[46]

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 [47] 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.

Furthermore, 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.

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

 

Examples of Administrative Court rulings on Dublin transfers and transfers of persons with protection status in another European country: 2019

Country

Halting transfer

Upholding transfer

Italy

 

Administrative Court of Düsseldorf, Decision 22 K 1273/18.A, 4 February 2020

Administrative Court of Minden, Decisions 10 K 7608/17.A, 10 K 2275/19.A , 10 K 2221/18.A, 10 K 2747/19.A,  13 November 2019 

Administrative Court of Braunschweig, Decision 3 A 16/18, 17 October 2019, Decision 1 B 165/19, 7 August 2019, Decision 3 B 220/19, 23 July 2019

Administrative Court of Freiburg, Decision A 5 K 1977/19, 10 October 2019

Administrative Court of Karlsruhe, Decision A 3 K 4406/19, 25 September 2019

Administrative Court of Darmstadt, Decision 3 L 1694/19.DA.A, 23 September 2019

Administrative Court of Trier, 7 K 4270/18.TR, 29 August 2019

Administrative Court of Köln, Decision 23 K 401/16.A, 29 May 2019

Administrative Court of Göttingen, Decision 3 A 142/18, 24 April 2019

Administrative Court of Trier, Decision 1 K 12662/17.TR, 29 October 2019, Decision 7 L 1226/19.TR, 10 April 2019, Decision L 1263/19.TR, 5 April 2019

VGH (High Administrative Court) of Baden-Württemberg, Decision A 4 S 749/19, 29 July 2019

Administrative Court of Aachen, Decision 9 K 4004/17.A, 27 May 2019

Administrative Court of Cottbus Decision 5 K 811/14.A, 7 May 2019

Administrative Court of Kassel, Decision 1 L 1011/19.KS.A , 30 April 2019

 

 

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.

It has to be noted that many court decisions which have been published in 2019 were dealing with cases of persons who had been granted international protection in other European states such as Bulgaria, Greece 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, Greece or Italy. These decisions have not been included to the list above as the cases do not fall under the Dublin Regulation. A list of such cases can be found online.[48]

 

The situation of Dublin returnees

 

Germany received 6,087 incoming transfers in 2019. Dublin transfers are usually carried out individually through commercial flights. In 2019, there were some exceptions with persons who were directly transferred to a “waiting room” in Erding, close to Munich Airport. This place served as reception point for the following persons: (a) Transfers in the context of ad hoc relocation arrangements following disembarkation and in Malta and Italy, except for unaccompanied children; and (b) Dublin returns from the United Kingdom, which were implemented through charter flights preceded by detention and physical restraints. The persons concerned arrived in Munich Airport. Upon arrival, returnees were transferred to the “waiting room” (Warteraum) in Erding managed by the BAMF and the German Red Cross, where they received accommodation and assistance for a period of 72 hours before being distributed to different regions in the country.[49]

According to reports from November 2019, activities at the “waiting room” in Erding were to be suspended at the end of 2019. This means that the facility has not been closed permanently, but put on “stand-by mode”, so it can be reactivated at short notice in case it is needed for new arrivals.[50]

In addition, as mentioned in General, a high number of transfers to Germany took place from Greece under the family unity provisions of the Dublin Regulation. Upon arrival in Germany, persons are sent to the place where their relatives are staying and local authorities provide them 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.[51]



[1] Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 3; 19/8340, 13 March 2019, 2; 19/921, 26 February 2018, 19; 18/11262, 21 February 2017, 35; 18/7625, 22 February 2016, 32.

[2]Article 9 recast Eurodac Regulation.                                                                     

[3] Article 14 recast Eurodac Regulation.

[4]Article 17 recast Eurodac Regulation.

[5] Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, 22-24.

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

[7] Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 12.

[8] Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019 , 15; and 19/17100, 20 February 2020, 33.

[9] Section 29(1)(a) Asylum Act.

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

[11] Ibid.

[12] 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.

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

[14] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.

[15] BVerfG, Decision 2 BvR 1795/14, 17 September 2014, Asylmagazin 10/2014, 341, available at: http://bit.ly/1I0LpIo.

[16] Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 21-22.

[17] Informationsverbund Asyl und Migration, ‘BAMF führt Überstellungen nach Italien wieder "uneingeschränkt" durch’, 29 March 2019, available in German at: https://bit.ly/2Uobbqu.

[18] Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 33-34 and 37.

[19]  Administrative Court Trier, Decision 5 L 1846/17.TR, 16 March 2017, asyl.net, available at: http://bit.ly/2FupouH.

[20]  Administrative Court Arnsberg, Decision 5 L 1831/18.A, 29 November 2018; Administrative Court Braunschweig, Decision 1 B 251/18, 16 October 2018.

[21]  High Administrative Court of Bavaria, Decision 10 CE 19.67, 9 January 2019.

[22]  Administrative Court Magdeburg, decision of 15 January 2019 – 2 B 806/18 MD – asyl.net: M26942

[23] Administrative Court Trier, decision of 31 January 2019 – 7 L 181/19.TR – asyl.net: M27030.

[24] Administrative Court Darmstadt, decision of 27 March 2019 – 4 L 489/19.DA.A – asyl.net: M27122. 

[25] Administrative Court Trier, decision of 5 April 2019 – 7 L 1263/19.TR – asyl.net: M27648.

[26] Administrative Court Frankfurt a.M., decision of 17 January 2019 – 3 L 50/19.F.A – asyl.net: M27018.

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

[28] Federal Government, Response to parliamentary question by The Left, 19/8340, 13 March 2019, 1 (preliminary remark).

[29] Ibid., 52 and 59-60.

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

[31]  Federal Constitutional Court, decision of 7 October 2019 – 2 BvR 721/19 – Asylmagazin 1-2/2020, S. 37 f. – asyl.net: M27758.

[32] Section 59(1) Residence Act.

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

[34] 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.

[35] CJEU, Case C-163/17 Jawo, Judgment of 19 March 2019, para 70.

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

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

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

[39] Entscheiderbrief, 9/2013, 3.

[40] Dominik Bender and Maria Bethke, “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung.” Asylmagazin 11/2013, 362.

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

[42]  Federal Government, Response to parliamentary question by The Left, 19/921, 26 February 2018, 19.

[43] Preliminary remark to Federal Government, Response to parliamentary question by The Left, 19/17100, 20 February 2020, 1.

[44]  Ibid., 52 and 59-60.

[45] Informationsverbund Asyl und Migration, ‘BAMF führt Überstellungen nach Italien wieder "uneingeschränkt" durch’, 29 March 2019, available in German at: https://bit.ly/2Uobbqu.

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

[47]  Bundesverfassungsgericht (BverfG), Decision 2 BvR 1380/19, 10 October 2019, asyl.net: M27757.

[48] The website is available in German at: https://www.asyl.net/recht/dublin-entscheidungen/. Search with the keyword “Anerkannte“ (recognised persons).

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

[50]  br.de, Erdinger "Warteraum Asyl" nur noch im Standby-Modus, 20 November 2019, available at: https://bit.ly/321g4t9.

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

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation