Dublin

Germany

Author

Informationsverbund Asyl und Migration

General

Dublin statistics: 2016







Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

55,690

3,968

Total

31,523

12,091

Italy

13,010

916

France

5,904

695

Hungary

11,998

294

Netherlands

5,828

1,686

Poland

6,728

884

Sweden

4,523

3,684

Source: Federal Government, Reply to parliamentary question by The Left, 21 February 2017, 37-38 and 52-53.

Since the amendment of the Asylum Act taking effect on 6 August 2016, the Dublin Regulation is now explicitly referred to as a ground for inadmissibility of an asylum application.1

 

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” (69.2% in 2016, in comparison to 76% in 2015, 68.5% in 2014, 66.7% in 2013 and 72.8% in 2012).2

The number of outgoing requests has risen significantly in recent years:




Outgoing Dublin requests from Germany

Year

2011

2012

2013

2014

2015

2016

Outgoing requests

9,075

11,469

35,280

35,115

44,982

55,690

Source: BAMF, Bundesamt in Zahlen 2012, 20-24; 2013, 23-30 Federal Government, Reply to parliamentary questions 18/3850, 28 January 2015, 22; 18/7625, 22 February 2016, 53; 18/11262, 21 February 2017, 35.

Details on the criteria used for requests are only available for the outgoing requests which were based on “Eurodac hits”. Statistics for 2016 refer to a total of 38,513 requests based on Eurodac, out of which:

  • 29,248 (76%) after an application for international protection (CAT 1);3

  • 7,443 (19.3%) after apprehension upon illegal entry (CAT 2);4 and

  • 1,822 (4.7%) after apprehension for illegal stay (CAT 3).5

In 2016, Germany accepted a total 162 incoming transfers of unaccompanied children under the Regulation’s family provisions. 68 unaccompanied children were transferred from Greece, 21 from the Netherlands and 16 from Sweden.6

 

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 39,663 cases in 2016 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 It is not clear whether the latter category also includes cases in which the humanitarian clause was used.

Dublin transfers to Greece remained suspended throughout 2016, following practice established since January 2011. Accordingly, in 31,488 cases, in which Greece was found to be responsible for carrying out the asylum procedure, the sovereignty clause was used or the transfer was halted for other reasons.8 In December 2016, the Federal Minister of the Interior informed members of the German parliament that transfers to Greece could be reintroduced in the course of 2017 “subject to strict conditions” (see Suspension of Transfers).9

Furthermore, the sovereignty clause has been applied to particularly vulnerable persons in cases where transfer would result in undue hardship. This practice has been applied to countries such as Malta since the autumn of 2009. The BAMF reported that it has continued this practice in 2016.10

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.11 Syrians are now treated similar to other nationalities in relation to Dublin, with 500 Syrians being transferred to other member states of the Dublin regulation in 2016 (12.6% of the total number of Dublin transfers).12

 

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.13 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.14 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).15 In 2015, no Dublin procedures were initiated by the border police.

It is not entirely clear whether the practice of Dublin procedures managed by the border police has resumed in 2016 (see also Access to the Territory). In response to an information request, the border police referred to returns of people who had asked for asylum in Germany but were returned to other member states based on the provisions of the Dublin Regulation. The border police did not provide information on the number of such cases. It claimed that the BAMF had not been carrying out Dublin procedures in these cases, but had been involved in these returns by determining the responsible member state under the Dublin Regulation. The border police also claimed that procedural guarantees, in particular access to an effective remedy as regulated in the Dublin Regulation, were adhered to in these return procedures.16 Thus, the border police’s statement seems to indicate that there have been cases in which asylum seekers were returned at the border by applying the Dublin Regulation, but it is not clear how a proper “Dublin procedure” (including submission of take charge requests to other member states etc.) could possibly be carried out within the short period of time that asylum seekers are held at the border. Furthermore, it is doubtful whether a Dublin procedure managed by the border police would be in line with the Asylum Act which provides that Dublin transfers should only be ordered by the BAMF.

 

Individualised guarantees

Even before the ECtHR’s ruling in the case of Tarakhel v Switzerland,17 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.18

In March 2016, the Administrative Court of Hannover stopped a transfer to Italy on the ground that the Italian authorities had not given an individualised guarantee that long-term accommodation would be available for a transferred person.19 The court pointed to information repeatedly submitted to the court, according to which the Italian authorities did not provide any individual guarantees at all.20

 

Transfers

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. 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 are often ignored by authorities and courts in “Dublin cases”.21

In 2016, Germany carried out 3,968 Dublin transfers, compared to 3,597 in 2015. The average duration of the Dublin procedure was reported at 3.2 months.        

         

Personal interview

Since the entry into force of Article 5 of the Dublin III Regulation, a personal interview is obligatory.22

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.23 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. existence of relatives in Germany).         

 

As of 6 August 2016, Dublin decisions are inadmissibility decisions under Section 29 of the Asylum Act. However, the legal basis for Dublin procedures is found in provisions originally created for “safe third countries”, which now refer to Dublin cases as well.24 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.”

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; this must be requested 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.25      

 

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

Greece: In December 2016, the Federal Minister of the Interior informed members of the German parliament that transfers to Greece could be reintroduced in the course of 2017 “subject to strict conditions”.26 Following a Recommendation by the European Commission of 8 December 2016, the Minister’s letter states that transfers can only take place of persons who will have entered Greece illegally after 15 March 2017 or for whom Greece is responsible from 15 March under other Dublin criteria. For a transfer to take place, the Greek authorities have to provide an individual assurance that the transferred person will be accommodated in accordance with the standards of the Directive on Reception Conditions. “Vulnerable” persons, in particular unaccompanied minors, should not be transferred to Greece for the time being.

Malta: 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.

Other countries: In addition, several hundred court cases resulted in suspension of transfers to other countries by means of issuance of interim measures. At the same time, however, 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. With regard to Hungary, decisions citing systemic deficiencies in the Hungarian asylum system (including decision by High Administrative Courts) seem to have outnumbered opposing decisions in the second half of 2016.

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 transfer

Transfer upheld

Bulgaria

Administrative Court Göttingen, Decision 2 B 507/16 of 22 December 2016

 

Administrative Court Freiburg, Decision A 6 K 1356/14 of 4 February 2016

 

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 Saarland, Decision 5 L 1536/16 of 20 October 2016

 

Administrative Court Köln, Decision 2 L 917/16.A of 29 April 2016

 

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

High Administrative Court of Niedersachsen (Lower Saxony), Decision 8 LB 92/15 of 15 November 2016

 

Administrative Court Oldenburg, Decision 12 B 5754/16 of 9 November 2016

 

High Administrative Court of Baden-Württemberg, Decision A 11 S 1596/16 of 13 October 2016

 

Administrative Court Trier, Decision 1 L 3979/16.TR of 31 August 2016

 

Administrative Court Gelsenkirchen, Decision 18a K 4190/14.A  of 27 July 2016

 

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 Osnabrück, Decision 5 A 75/16 of 18 May 2016

 

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 Minden, Decision 10 L 314/16.A  of 29 March 2016

 

Administrative Court Düsseldorf, Decision 8 L 3173/15.A  of 28 December 2015

 

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 Arnsberg, Decision 5 L 540/16.A of 14 April 2016

 

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).     

 

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.

  • 1. Section 29(1)(a) Asylum Act.
  • 2. Federal Government, Response to parliamentary question by The Left, 18/11262, 21 February 2017, 35; 18/7625, 22 February 2016, 32.
  • 3. Article 9 recast Eurodac Regulation.
  • 4. Article 14 recast Eurodac Regulation.
  • 5. Article 17 recast Eurodac Regulation.
  • 6. Federal Government, Reply to parliamentary question by The Greens, 1811080, 3 February 2017, available in German at: http://bit.ly/2lu2c2V, 13.
  • 7. Federal Government, Response to parliamentary question by The Left, 18/11262, 21 February 2017, 42-45.
  • 8. Ibid, 43.
  • 9. Federal Ministry of Interior, Letter by Thomas de Maizière, Federal Minister of the Interior, to the parliamentary committee for interior matters and to the petitions committee, 30 December 2016, available in German at: http://bit.ly/2k62joe.
  • 10. Federal Government, Reply to parliamentary question by The Left, 18/10953, 19 January 2017, available in German at: http://bit.ly/2kL2en5, 4.
  • 11. Spiegel Online, ‘Deutschland will Syrer wieder in andere EU-Länder zurückschicken’, 10 November 2015, available in German at: http://bit.ly/1OS6rRk.
  • 12. Federal Government, Response to parliamentary question by The Left, 18/11262, 21 February 2017, 47.
  • 13. Dublin Transnational Project, Dublin II Regulation, National Report – Germany, December 2012, 71.
  • 14. 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.
  • 15. 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.
  • 16. Federal Police Head Office, Response to an information request submitted by Informationsverbund Asyl und Migration, 23 February 2017.
  • 17. ECtHR, Tarakhel v Switzerland, Application No 29217/12, Judgment of 4 November 2014.
  • 18. BVerfG, Decision No 2 BvR 1795/14 of 17 September 2014, Asylmagazin 10/2014, 341, available at: http://bit.ly/1I0LpIo.
  • 19. Administrative Court Hannover, Decision 4 A 8072/13, 23 March 2016, asyl.net, available at: http://bit.ly/2mlUM2h.
  • 20. This information was confirmed by the Administrative Court Braunschweig, Decision 5 A 332/15, 12 October 2016, asyl.net, available at: http://bit.ly/2j7Mnhj.
  • 21. 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.
  • 22. BAMF, Entscheiderbrief, 9/2013, 3.
  • 23. Dublin Transnational Project. Dublin II Regulation, National Report – Germany, December 2012, 12.
  • 24. Section 34a(1) Asylum Act.
  • 25. Dominik Bender and Maria Bethke, “'Dublin III', Eilrechtsschutz und das Comeback der Drittstaatenregelung.” Asylmagazin 11/2013, 362.
  • 26. Federal Ministry of Interior, Letter by Thomas de Maizière, Federal Minister of the Interior, to the parliamentary committee for interior matters and to the petitions committee, 30 December 2016, available in German at: http://bit.ly/2k62joe.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detention and content of international protection across 20 countries.