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Germany / Federal Administrative Court / C 4.19

Unknown asylum seeker vs. the Federal Office for Migration and Refugees

Deciding Body type:
National Court/Tribunal
Deciding Body:
Federal Administrative Court
Type:
Decision
Decision date:
11/02/2021
ECLI:
ECLI:DE:BVerwG:2020:210420U1C4.19.0
Key facts of the case:
The plaintiff is a stateless Palestinian from Syria who arrived in Bulgaria in 2013, where he was recognized as refugee and enjoyed as such the right of subsidiary protection. From Bulgaria, he migrated via Romania, Hungary and Austria further to Germany where he applied for asylum in November 2013. The plaintiff’s application was rejected by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) in February 2014. The BAMF argued without substantive examination that the application was inmissible due to the fact that the plaintiff had entered from a “safe third country”, namely Austria. Against this decision the plaintiff lodged a complaint with an Administrative Court Trier which dismissed the complaint. The Higher Administrative Court Koblenz upheld the dismissal of the first instance and confirmed the finding that the plaintiff is not entitled to asylum due to the fact that at least Austria is to be considered as a “safe third country”. The plaintiff lodged an appeal against this decision with the Federal Administrative Court. The Federal Administrative Court referred several questions regarding the interpretation of Directive 2013/32/EU and art. 4 of the Charter of Fundamental Rights to the CJEU, before eventually deciding the case in April 2020.The plaintiff is a stateless Palestinian from Syria who arrived in Bulgaria in 2013, where he was recognized as refugee and enjoyed as such the right of subsidiary protection. From Bulgaria, he migrated via Romania, Hungary and Austria further to Germany where he applied for asylum in November 2013. The plaintiff’s application was rejected by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) in February 2014. The BAMF argued without substantive examination that the application was inmissible due to the fact that the plaintiff had entered from a “safe third country”, namely Austria. Against this decision the plaintiff lodged a complaint with an Administrative Court Trier which dismissed the complaint. The Higher Administrative Court Koblenz upheld the dismissal of the first instance and confirmed the finding that the plaintiff is not entitled to asylum due to the fact that at least Austria is to be considered as a “safe third country”. The plaintiff lodged an appeal against this decision with the Federal Administrative Court. The Federal Administrative Court referred several questions regarding the interpretation of Directive 2013/32/EU and art. 4 of the Charter of Fundamental Rights to the CJEU, before eventually deciding the case in April 2020.
Key legal question raised by the Court:
The Federal Administrative Court had to decide whether the finding that the plaintiff had no right to asylum due to the fact that he entered from a “safe third country” was legitimate or not. The Court had to assess both whether Austria was to be considered a “safe third country” in the sense of section 29 (1) of the German Asylum Act (Asylgesetz) and whether the BAMF’s decision to declare the the plaintiff’s application inadmissible was exceptionally illicit in the light of the protection warranted by European Union law.
Outcome of the case:

The Federal Administrative Court found that Austria cannot be considered a “safe third country“, because a “safe third country” in the sense of the Asylum Act interpreted in the light of European Union law can only be a state which is not a Member State of the European Union. Concerning the question whether the BAMF’s decision to declare the plaintiff’s application inadmissible was exceptionally illicit on the grounds of European Union law, the Court found that this would be especially the case, if the plaintiff’s living conditions as recognised refugee in the other Member state constituted a serious danger of an inhuman or degrading treatment in the sense of article 4 of the Charta of Fundamental Rights. However, based on the facts established by the Higher Administrative Court, the Court could not answer the latter question definitively. Hence, the case was referred back to the Higher Administrative Court Koblenz to establish the all facts needed to decide if the plaintiff’s right warranted by Article 4 of the Charter is at risk.