Germany, Federal Administrative Court, 23 March 2017 1 C 17.16

Identification of the case

• Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
• Right to asylum (art. 18 CFREU)

• Paragraphs 26a, 29 Abs. 1 No. 1, No. 2, No. 3, 34ª Asylum Law

• Articles 2, 5 para. 2, 10 para. 1, 23 para 2, 37, 49 para. 2 Dublin III Regulation

Summary of the case

The applicant is a stateless Palestinian from Syria who applied for asylum in Germany on 29 November 2013, after having been granted subsidiary protection in Bulgaria. The Federal Agency of Migration and Refugees (Federal Agency) requested Bulgaria to take back the applicant. The request was denied, arguing that due to the granting of subsidiary protection, the provisions of the Dublin III Regulation on taking back an applicant were not applicable. The Federal Agency - without examining the merits of the case - declared that the applicant was not entitled to asylum and ordered his deportation to Bulgaria. The Administrative Court Trier denied the applicant’s appeal against the decision of the Federal Agency. The Rheinland-Pfalz Higher Administrative Court cancelled the deportation order, but dismissed the remainder of the appeal. It argued the applicant had entered Germany through a safe third country (Austria). The Federal Administrative Court stayed the proceedings and made a reference to the CJEU.

• Other

Annulment of the administrative decision.

The Federal Administrative Court made a reference for a preliminary ruling of the CJEU, posing several questions on the interpretation of the Dublin III Regulation. It asked inter alia whether a Member State would be prevented from denying a request for international protection as inadmissible if the applicant requests international protection after having been granted subsidiary protection in another Member State, if the asylum procedure in that Member State suffers from systemic deficiencies and/or the living conditions for a person that has been granted subsidiary protection contravene Article 4 CFREU/Article 3 ECHR or do not suffice the requirements of Articles 20 et seqq. Of Directive 2011/95/EU.

Role of the Charter and role of the general principles on enforcement

The Federal Administrative Court asked in its preliminary reference whether a Member State would be prevented from denying a request for international protection as inadmissible if the applicant requests international protection after having been granted subsidiary protection in another Member State, if the living conditions for a person that has been granted subsidiary protection contravene Article 4 CFREU.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

Additional notes on the decision