Dublin

Germany

Author

Informationsverbund Asyl und Migration

General

  • Outgoing requests: 2015 (January-June): 23,971
    • Hungary: 6,571
    • Italy: 5,567
    • Bulgaria: 2,910
  • Incoming requests: 2015 (January-June): 3,189
    • France: 598
    • Sweden: 493
    • Netherlands: 461
  • Outgoing transfers: 2015 (January-June): 1,905
    • Italy: 433
    • Poland: 310
    • France: 224
  • Incoming transfers: 2015 (January-June): 1,375
    • Sweden: 246
    • Greece: 239
    • France: 144

 

The Dublin Regulation is not explicitly referred to in German law, but there is a general reference to EU law in Section 27a of the Asylum Act: “An application for asylum shall be inadmissible if another country is responsible for processing an asylum application based on European Community law or an international treaty.”

 

Application of the Dublin criteria

No recent information is available on the interpretation of the Dublin criteria.

The major part of outgoing Dublin requests was based on so-called “Eurodac hits” (18,222 out of 23,971, i.e. 76% of requests in the first half of 2015, in comparison to 68.5% in 2014, 66.7% in 2013 and 72.8% in 2012).

The number of outgoing requests has risen significantly in recent years: In the first half, there were 23,971 outgoing requests. In 2014, there were 35,115 outgoing requests as compared to 35,280 in 2013, 11,469 in 2012, 9,075 in 2011 and 5,390 in 2007. While nowadays outgoing requests by far outnumber the incoming ones, in earlier years the numbers had almost been on an equal footing (e.g. 4.996 outgoing and 5.103 incoming requests in 2006).1

Details on the criteria used for requests are only available for the outgoing requests which were based on “Eurodac hits”. These numbered 18,222 in the first half of 2015. Out of these, 13,152 requests (72.2%) were based on Article 4 of the Eurodac Regulation (i.e. registration of an asylum application in another Member State). 3,854 outgoing requests (21.2%) were made pursuant to Article 8 of the Regulation (registration after illegal entry in another Member State).2

 

The 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 2,882 cases in the first half or 2015 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.3 It is not clear whether the latter category also includes cases in which the humanitarian clause was used. The recent figure represents a significant increase in the number of cases taken charge of by Germany (2,882 cases for the first half of 2015 as compared to 2,225 cases for the whole year of 2014).4 This is evidently in line with the general increase in numbers of asylum applications and with the travel routes of asylum seekers. In particular, there were 2,059 asylum procedures in the first half or 2015 which Germany took charge of because Greece had been established to be responsible for the procedure (in theory). In practice, all transfers to Greece remain suspended.

This has been the established practice since January 2011, when the government announced for the first time that procedures would be taken charge of in all cases in which Greece was considered to be responsible for the asylum procedure. Dublin transfers to Greece have been suspended on an annual basis since then and they remain suspended until 12 January 2016. Furthermore, the sovereignty clause has been applied to particular vulnerable persons in cases in which Malta is considered responsible for the asylum procedure. This practice has been applied since the autumn of 2009.

In August 2015, the authorities announced that Dublin procedures had been suspended for Syrian nationals “to the greatest extent”. The wording of this announcement suggested that “Dublin transfers” of Syrians were not completely excluded and could still take place in exceptional cases. On 10 November 2015, the Federal Ministry of the Interior stated that the practice had been changed from 21 October 2015 onwards with Dublin procedures having been generally reintroduced for Syrian asylum seekers.5

 

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 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 cause 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.

Until 2013 the border police also initiated Dublin procedures, if a person apprehended at or close to the border could not immediately be sent back to the neighbouring country but there were indications that the neighbouring state was responsible for the asylum procedure. Agreements on the handling of such cases exist between Germany and Denmark, Switzerland, Austria and the Czech Republic.6 In 2013, the border police initiated 123 takeover requests and carried out 119 transfers.7 In 2012, there were 175 takeover requests from the border police to other states with 169 transfers being carried out in the process.8 However, this handling of Dublin procedures by the border police seems to be in contradiction to the policy of the asylum authorities: The BAMF informed the Federal States and the border police on 17 July 2013 that Dublin procedures would be carried out by the Federal Office only, with immediate effect.9 In spite of this, Dublin procedures under the responsibility of the border police were still carried out in the second half of and in 2014 (19 Dublin procedures carried out by the border police).10 In the first half of 2015, no Dublin procedures were initiated by the border police.11

In the regular procedure, all asylum seekers receive an information sheet on the Dublin Regulation. However, it has been noted that translated versions of this sheet are often not available.12

 

Individualised guarantees

Even before the ECtHR’s ruling in the case of Tarakhel v Switzerland,13 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.14 Furthermore, on 30 April 2015, the Federal Constitutional Court granted an interim measure against a transfer of a family with several children (the youngest being five years old) to Italy. The Court argued that the minor children belonged to a vulnerable group within the standards of the ECtHR’s decision in the case of Tarakhel v Switzerland. Therefore it upheld the decision by a lower court which had asked the BAMF to obtain an individual guarantee from the Italian authorities that the family would be accommodated following a possible transfer. Without going into details in the summary proceedings at hand, the Court concluded that such an individualised guarantee would have to adhere to certain standards which would have to be verifiable by a court.15

In another case the Federal Constitutional Court stopped the transfer of a family to Italy on 17 April 2015. The BAMF and a lower court in this case had argued that it would be sufficient for the BAMF to obtain individual guarantees from the Italian authorities at a later stage (before the actual transfer would take place), so it would not be necessary to include the existence or non-existence of such an individualised guarantee in the decision-making process. The Constitutional Court indicated at the time that it considered this question to be unresolved, but it has not decided on the matter in the main proceedings.16

Going beyond the ECtHR’s and the Constitutional Court’s case law, several Administrative Courts have argued that the necessity to obtain individual guarantees from Italy for the adequate reception of “Dublin returnees” extends to all asylum seekers, since the existence of systemic deficiencies could not be ruled out.17 However, courts are divided over this issue, with several other courts arguing that no systemic deficiencies exist in Italy and therefore asylum seekers who do not belong to a vulnerable group (especially single male adults) would not be at risk of inhuman or degrading treatment in case of a transfer and therefore no individualised guarantee would be required.18

In practice, the BAMF rarely seems to have presented individualised guarantees from the Italian authorities in Dublin procedures. For instance, the Administrative Court of Göttingen granted an interim measure against a transfer of a Nigerian family to Italy in March 2015 because it considered the guarantee submitted to the court to be completely insufficient. According to the decision, the note from the Italian authorities did not contain any reference to the situation of the family in question and it had neither been signed nor dated.19 In May 2015 the BAMF informed another Administrative Court that the Italian authorities did not submit any individual guarantees in line with the ECtHR’s case law “for the time being”.20

 

Transfers

There are no publicly available statistics on how many “Dublin transfers” are preceded by detention. Until June 2013 asylum seekers who were apprehended for illegal entry and who could not be immediately removed to another state were detained “as a rule” and their asylum applications were not accepted before a decision on the Dublin request had been reached. This practice was based on a directive of the German Federal Ministry of the Interior of March 2006. This directive was revoked with effect from 28 June 2013. Accordingly, detention should now only take place exceptionally in these cases and it should be terminated regularly if detained persons apply for asylum.

Generally speaking, however, the filing of an asylum application does not necessarily lead to termination of detention; independent of whether detention has been ordered for the purpose of removal to another country or for another purpose. In particular, detention may be upheld or prolonged if another country has already been requested to take charge of an asylum procedure on the basis of EU legislation.

From the point of view of asylum seekers, there is no clear separation between the Dublin procedure and the “normal” asylum procedure. Until the first half of 2013, many asylum seekers were not even aware of on-going Dublin procedures or about the outcome of these procedures until the transfer took place. “Dublin decisions” were frequently handed out on the day of the transfer. However, in the light of changes in German law (in turn based on the amendments in the recast Dublin Regulation), the German authorities announced on 17 July 2013 that this practice had been stopped.21 “Dublin decisions” are now handed out in written form to the asylum seeker. These decisions also contain information about possible legal remedies, in particular about the possibility to ask an Administrative Court for emergency legal protection, i.e. to stop the transfer by restoring suspensive effect of appeals. In the letter of 17 July 2013 the authorities further confirmed that transfers can only take place if the deadline for emergency legal protection has expired (i.e. 7 calendar days after the decision has been handed out) or if a court has rejected an application for emergency legal protection.

Transfers under the Dublin regulation are usually carried out as deportations since no deadline is set for a “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.22

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 are often ignored by authorities and courts in “Dublin cases”.23

 

The situation of Dublin returnees

There have been no reports of “Dublin returnees” facing difficulties in accessing an asylum procedure after having been transferred to Germany.

         

Personal interview

In accordance with Article 5 of the Dublin III Regulation, a personal interview is now obligatory.24

There is no consistent practice for interviews in Dublin procedures. For the authorities a Dublin procedure means that responsibilities are referred to the “Dublin division” of the BAMF, which may take place at various stages of the procedure. In practice, the procedures may be carried out successively or simultaneously.25 If the Dublin and regular procedure are carried out simultaneously, a regular interview is conducted according to the standards of the regular 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 asylum interview.

If a Dublin procedure is initiated before the “regular” interview took place, 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. on existence of relatives in Germany).

 

 

As the Dublin Regulation has not been transposed as such into German law, the legal basis for Dublin procedures is found in provisions originally created for “safe third countries”. It is possible to lodge an appeal against a Dublin decision at an administrative court. However, Section 34a of the Asylum Act places severe restrictions on procedural rights and guarantees, although the situation has improved with an amendment of Section 34a, which came into effect on 6 September 2013:26

  • The BAMF shall order the deportation to the safe third country or to the country responsible for the asylum procedure “as soon as it has been ascertained that the deportation can be carried out.”
  • Suspensive effect of an appeal against a “Dublin decision” is no longer ruled out by law. However, the law still does not provide for an automatic suspensive effect. Instead, it is possible now not only to appeal before an Administrative Court but also to file an application asking the court to restore suspensive effect of the appeal. The time-limit for this application is 1 week (7 calendar days) following the handing out of the “Dublin decision”. 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.
  • In reaction to the new law, the Federal Office for Migration and Refugees has announced that written decisions will now be handed out in all Dublin cases.27 Previously, the law did not require the authorities to notify asylum seekers in advance, prior to the execution of their transfer to another Member State. This meant that asylum seekers were often informed about the rejection of their application only when it was no longer possible to appeal against the decision, e.g. by contacting a lawyer.

The change in the Asylum Act means that, in terms of the procedural conditions, the obstacles to effective legal remedy in “Dublin cases” have been reduced. However, material requirements for a successful appeal are still difficult to fulfil and how 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 below).

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.28

 

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.   

 

Suspension of transfers

From September 2009 onwards, the Constitutional Court itself issued several interim measures against transfers to Greece, thus paving the way for a landmark decision on Section 34a(2) of the Asylum Act. However, the government stopped all Dublin transfers to Greece in January 2011 before the Constitutional Court could decide on the cases. As a result, the Constitutional Court declared the cases closed, without deciding on the merits of the cases.

Transfers to Greece were suspended for one year from January 2011 onwards by way of a directive issued by the Federal Ministry of the Interior. Since the issuance of the directive the suspension has been extended annually; the latest extension is in effect until 12 January 2016. Procedures are taken charge of by Germany in all cases where Greece has been found to be responsible for the asylum application. This means that asylum seekers are entitled to all rights and subjected to all obligations applicable to asylum seekers in the regular procedure.

Furthermore, the sovereignty clause has been applied to particularly vulnerable persons in cases where Malta was determined as the Member State responsible for examination of an asylum application. This practice has been applied since autumn 2009.

In addition, several hundred court cases resulted in suspension of transfers to other countries by means of issuance of interim measures (most notably to Italy, but also to Hungary, Malta, Bulgaria and other countries). At the same time, though, other courts 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, Hungarian or Bulgarian asylum system amount to “systemic deficiencies” 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. Recent decisions concerning those countries are listed below:

 





Country

Decisions stopping Dublin transfers

Opposing decisions

Bulgaria

Administrative Court Cologne, Decision No 19 K 517/14.A  of 17 September 2015

 

Administrative Court Oldenburg, Decision No 12 A 181/15 of 20 October 2015.

Administrative Court Stuttgart, Decision No A 13 K 4585/15 of 30 September 2015

 

High Administrative Court Baden-Württemberg, Decision No A 11 S 106/15 of 1 April 2015

 

Hungary

Administrative Court Düsseldorf, Decision No 22 L 2944/15.A of 3 September 2015

 

Administrative Court Minden, Decision No 10 L 285/15.A of 1 September 2015

 

Administrative Court Saarland, Decision No 3 L 633/15 of 5 August 2015

 

Administrative Court Düsseldorf, Decision No 13 L 3465/15.A of 21 October 2015

 

Administrative Court Stade, Decision No 6 B 1371/15 of 16 September 2015

Italy

Administrative Court Potsdam, Decision 4 K 2689/14.A of 30 September 2015

 

Administrative Court Hannover, Decision No 10 A 13369/14 of 7 September 2015

Administrative Court Düsseldorf, Decision No 13 K 606/14.A of 31 July 2015

 

Administrative Court Lower Saxony, Decision 11 LB 248/14 of 25 June 2015

 

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). Therefore, Greece remains the only country to which transfers are generally suspended.  

  • 1. All figures cited from: Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 18 August 2015, No. 18/5785, 16; Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 28 January 2015, No. 18/3850, 22; BAMF, Bundesamt in Zahlen 2013 – Asyl (Federal Office in numbers 2013 - Asylum), February 2014, 23-30; Bundesamt in Zahlen 2012 – Asyl, February 2013, 20-24.
  • 2. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 18 August 2015, No. 18/5785, 16.
  • 3. Ibid, 19-23.
  • 4. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 28 January 2015, No. 18/3850, 29-33.
  • 5. Spiegel Online, ‘Deutschland will Syrer wieder in andere EU-Länder zurückschicken’ (Germany wants to send back Syrians to other EU-countries), 10 November 2015, available in German at: http://bit.ly/1OS6rRk.
  • 6. Dublin Transnational Project, Dublin II Regulation, National Report – Germany, December 2012, 71.
  • 7. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/“Die Linke”, 5 March 2014, No. 18/705, 18.
  • 8. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/“Die Linke”, 31 January 2013, No. 17/12234, 11.
  • 9. Letter from the BAMF from 17 July 2013: “Änderung der Verfahrenspraxis des Bundesamtes im Rahmen des Dublinverfahrens” (Change of practices of the Federal Office with regard to Dublin procedures), 430-93604-01/13-05.
  • 10. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 28 January 2015, No. 18/3850, 36.
  • 11. Federal Government of Germany, Response to information request by the parliamentary group of “The Left” party/”Die Linke”, 18 August 2015, No. 18/5785, 26.
  • 12. According to the BAMF, the “Dublin procedure leaflet” was available in 15 languages in 2010; European Union Agency for Fundamental Rights (FRA), Country Factsheet Germany, 2010. 2.
  • 13. ECtHR, Tarakhel v Switzerland, Application No 29217/12, Judgment of 4 November 2014.
  • 14. BVerfG, Decision No 2 BvR 1795/14 of 17 September 2014, Asylmagazin 10/2014, 341, available at: http://bit.ly/1I0LpIo.
  • 15. BVerfG, Decision No 2 BvR 746/15of 30 April 2015, asyl.net, M22858, available at: http://bit.ly/1XahRiA.
  • 16. BVerfG, Decision No 2 BvR 602/15 of 17 April 2015, asyl.net, M22909, available at: http://bit.ly/1S67zi0.
  • 17. See e.g. Administrative Court Hannover, Decision No 10 B 3555/15of 4 August 2015, asyl.net, M23159, available at: http://bit.ly/1MVhkQ7 and Administrative Court Arnsberg, Decision No 13 K 515/15.A of 20 April 2015, asyl.net, M22864, available at: http://bit.ly/1kGYaTK.
  • 18. See e.g. High Administrative Court of Lower Saxony (Oberverwaltungsgericht Niedersachsen), Decision No 11 LB 248/14 of 25 June 2015, asyl.net, M23037; Administrative Court Potsdam, Decision No 6 L 712/15.A of 17 June 2015, asyl.net, M23007, available at: http://bit.ly/1j97cac.
  • 19. Administrative Court Göttingen, Decision No 3 B 83/15 of 26 February 2015, asyl.net, M22677, available at: http://bit.ly/1MWKmdE.
  • 20. Administrative Court Hannover, Decision No 7 B 1962/15 of 21 May 2015.
  • 21. Informationsverbund Asyl und Migration, Änderungen im Dublin-VerfahrenChanges in the Dublin procedure, 2 August 2013.
  • 22. Dublin Transnational Project, Dublin II Regulation, National Report – Germany, December 2012, 48.
  • 23. Peter Fahlbusch, “Haft in Verfahren nach der Dublin II-Verordnung” (Detention during the Dublin procedure), Asylmagazin 9/2010, 290; Dublin Transnational Project. Dublin II Regulation, National Report – Germany, December 2012, 69.
  • 24. BAMF, Entscheiderbrief, 9/2013, 3.
  • 25. Dublin Transnational Project. Dublin II Regulation, National Report – Germany, December 2012, 12.
  • 26. See Dominik Bender and Maria Bethke: “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung” ('Dublin III', interim protection and the comeback of the safe third country-provision), ASYLMAGAZIN 11/2013, 358-367.
  • 27. Letter of the BAMF to the German Federal States, 17 July 2013 (not published), cf. Informationsverbund Asyl und Migration, Änderungen im Dublin-VerfahrenChanges in the Dublin procedure, 2 August 2013.
  • 28. Cf. further references in Dominik Bender and Maria Bethke, “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung.” ('Dublin III', interim measures protection and the comeback of the safe- third- country-provision), ASYLMAGAZIN 11/2013, 362.

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The Asylum Information Database (AIDA) is a database containing information on asylum procedures, reception conditions and detention across 20 countries.