LITIGATION


In October 2018, we started to (strategically) litigate against rejections of family reunions under the Dublin III Regulation by the German Asylum Service (BAMF). In 2018, the rejection rate of so-called take charge requests from Greece to Germany increased significantly. Many rejections are unlawful and ignore the priority of the best interest of the child and the family unity principles.

The cases we litigate are both, our own cases from our offices in Athens and Chios, but also cases our partners and other Greek lawyers refer to us for the purpose of challenging rejections in family reunion procedures in German courts. Our litigation referral form can be found here.

On this page we summarize the positive court decisions in order to enable access to them for interested lawyers in Greece, Germany and elsewhere.

VG ARNSBERG, Decision of 09 April 2019 – 1 L 1977/18.A


The case concerns a minor Syrian asylum seeker and her baby, which was born in Greece. Her mother and grandmother of her baby is legally residing in Germany. She arrived in Greece with her alleged husband, to whom she was forcibly married at the age of 15. Due to serious concerns regarding the child`s welfare, the minor was separated from her alleged husband before she gave birth to her baby. Greece sent a take charge request to Germany in order to reunify the minor and her baby with the mother resp. grandmother. Germany rejected the take charge request arguing, the baby could not be separated from his "father", though the man was neither recognized as father in Greece, nor interested in exercising parental care. These rejections are a gross violation of the priority of the child`s best interest and were obviously unlawful.

The court obliged Germany to accept the take charge request and thereby to enable the family reunion of the minor mother and her baby to her mother in Germany under Art. 8 Dublin III Regulation.

The full decision can be found here.




VG TRIER, Decision of 27 March 2019 – 7 L 1027/19.TR


The case concerns a woman and her three minor children, who entered Greece in April 2018. The husband and father resided in Germany since 2016 and got granted subsidiary protection. After some formal rejections, the take charge request was finally rejected based on the fact, that the husband resided with his alleged second wife in Germany and that in Germany multiple marriages were not accepted. The court decided, that the rejections were unlawful and obliged BAMF to accept the take charge request. It does not matter, whether the marriage of the parents was even valid or not, since Germany is responsible for the asylum procedures of the children under Art. 9 Dublin III Regulation, since their father is beneficiary of international protection in Germany. Due to the non-separation clause of Art. 11 Dublin III Regulation, Germany is responsible for the whole family, since the children cannot be separated from their mother. Therefore, Germany has to accept the family reunion. The decision confirms the justiciability of rejections of in family reunion procedures under Dublin III and also shows, that the requested member states cannot just make up rejection reasons that are not provided in the Dublin III Regulation.​ The full decision can be found here.




VG BERLIN, Decision of 15 March 2019 – 23 L 706.18


The case concerns a married couple and her adult daughter, who entered Greece in October 2017. Their minor son respectively brother resided in Germany since 2015 and got granted subsidiary protection. The take charge request for the parents was rejected, since Greece has submitted the co-called re-examination request delayed, though having sent so-called “holding letters” indicating, that more time is needed for the re-examination request. This request can be sent by the requesting member state after the initial rejection of a take charge request by providing new evidence for the responsibility of the other member state. The court held the rejections unlawful and obliged BAMF to accept the take charge request for all family members including the adult daughter/sister. The court made clear, that the strict deadline regime is not to be applied directly on family reunion cases, since the principle of family unity and the best interest of the child have to be taken into consideration. The jurisprudence of the European Court of Justice on the deadline regime in the re-examination procedure is not applicable on family reunion constellation, since otherwise requested member states could circumvent their responsibility just by leaving re-examination requests unanswered. Further the court decided, that Germany also has to include the adult daughter in the family reunion under the discretionary clause Art. 17 (2) Dublin III Regulation due to the specific humanitarian circumstances of the case. The adult daughter had not established yet an own family life and was subject to severe persecution and violence in her home country, therefore she could not be separated from her parents. The court confirmed the priority of family life over procedural deadline. Further, the court confirmed, that also the discretionary clause can be subject to judicial review and discretion can be limited to a legal obligation to accept a take charge request even in cases, in which the binding rules of Art. 8-11 Dublin III Regulation do not apply. ​​ The full decision can be found here.




VG MÜNSTER, Decision of 20 December 2018 - 2 L 989/18.A


The first positive decision concerned an unaccompanied minor in Greece. His brother resided as in Germany since September 2015 and had been recognized as beneficiary of subsidiary protection. The minor entered Greece in 2016 together with his cousin. Greece had sent the initial take charge request too late, since they unlawfully required the cousin, who was only appointed as temporary caregiver, to consent to the family reunion. Germany rejected the take charge request several times, arguing the minor was not unaccompanied as required for the application of Art. 8 Dublin III Regulation and arguing with the delay of the take charge request. The Administrative Court Münster found the rejection unlawful and obliged BAMF to accept the family reunion. Whether or not a minor is unaccompanied is to be determined by the law of the requesting member state and indeed, under Greek law the minor is unaccompanied and thus Art. 8 Dublin III Regulation is to be applied. Further, it cannot be held against the minor, that the Greek state failed to send the family reunion request in time. In any case, in such a constellation, Germany has to accept the take charge request under Art. 8 itself or under the discretionary clause of Art. 17 (2) Dublin III regulation due to the high importance of the right to family life and the best interest of the child. The decision is very important, since recognizes the subjective right to family unity deriving from the provisions of the Dublin III Regulation and also recognizes the justiciability of this right in case of an unlawful rejection. Further, it addresses the crucial question of the relation of deadlines and family unity in the Dublin procedure and confirms, that the states cannot prevent family unity merely by referring to procedural deadlines over which family members have no control. ​​ The full decision can also be found here. An English summary is provided by the European Database of Asylum Law. A German summary is provided by Informationsverbund Asyl und Migration. Vinzent Vogt has commented the decision for Asylmagazin [German]. Catharina Ziebritzki has commented the decision for Zeitschrift für Ausländerrecht und Ausländerpolitik [German].




VG WEIMAR, Decision of 03 September 2019 – 2 E 1204/19 We


The case concerns a Turkish family. The wife and three children applied for asylum in Greece. By that time, the husband was already residing in Germany as asylum applicant. His asylum application was rejected by the German Asylum Service, however, he appealed against the rejection in first instance administrative court. Germany rejected the take charge request submitted by Greece under Art. 10 Dublin III Regulation, arguing, that the husband and father was not to be considered as an asylum applicant anymore, since his application for asylum was rejected by the German asylum service.

The court followed our argumentation and the existing jurisdiction by Administrative Court Berlin and concluded, that as long as the court proceedings in Germany concerning the father`s asylum claim are not concluded, he is still to be considered as an asylum applicant under Art. 10 Dublin III Regulation. The court therefore obliged Germany to accept the family reunion.

The full decision ca be found here.




VG WIESBADEN, Decision of 25 April 2019 - 4 L 478/19.WI.A


Litigated independently by our cooperation lawyer Christopher Wohnig. The case concerns a minor, who arrived in Greece together with his mother and a sibling. They all had applied for asylum in Greece together. After some time, the mother and the sibling travelled to Germany and applied for asylum there as well. Germany accepted the responsibility for examining the asylum applications of the mother and sibling, as Germany did by default at that time for asylum seekers from Greece due to systemic deficiencies in the Greek asylum system (Art 17 para 1 Dublin III Regulation – self-entry).

Greece then sent a take charge request for the minor in order to be reunified with his family in Germany. After some formal rejections, the request was finally rejected based on the fact, that the deadline for a take charge request under Art. 8 Dublin III Regulation has been expired and that there are no humanitarian reasons since the mother decided voluntarily to be separated from her son.

The court disagreed: in the light of the minor`s best interest, the circumstances of the family separation do not matter.The alleged "voluntary" separation - whose voluntariness the court doubts anyway - could not be in the minor's best interest, as he clearly did not want to be separated from his mother.

Germany, by taking responsibility for the asylum procedure of the mother under Art. 17 para. 1 Dublin III Regulation, also legally is to be assumed responsible for the connected issues such as the family unity. Therefore, the court obliged Germany to accept the take charge request under the discretionary clause (Art. 17 para. 2 Dublin III Regulation).

The full decision can be found here.




VG MÜNSTER, Decision of 06 May 2019 - 2 L 392/19.A


The case concerns a minor Afghan asylum seeker, who arrived with one brother in Greece, while his other adult brother resides in Germany and has been granted refugee status. The brother in Greece could not take care for the minor due to serious health problems and was neither practically nor legally responsible for the minor. To the contrary, the minor was hosted in structures for unaccompanied minors.

Greece submitted a take charge request based on Art. 8 Dublin III Regulation including various circumstantial evidence indicating that the minor and the brother in Germany were indeed brothers. Nevertheless, Germany rejected the take charge request arguing that the family link was not proven.

Later, Greece submitted positive DNA results clearly proving the family link between the minor and his brother in Germany. Germany still rejected the family reunion, since the DNA was submitted after the deadlines. Further, the German Dublin Unit argued, that the other brother in Greece could take care for the minor and that his medical condition did not prevent him from irregularly entering Greece, which would already show his ability to take care of the minor.

The court held the rejections unlawful: Germany should have already accepted the take charge request based on the various circumstantial evidence submitted in the first place, at least Germany should have accepted the family reunion upon submission of the DNA test. Lastly, the court clarified once more, that whether or not a minor is unaccompanied in Greece – which is a prerequisite for the applicability of Art. 8 Dublin III Regulation - is to be assessed in accordance with Greek law and thus the minor is unaccompanied.

The full decision can be found here.




VG STUTTGART, Decision of 14 August 2019 – A 3 K 2257/19


The case concerns an Afghan unaccompanied minor, whose (half) brother resides in Germany and is German citizen. After submission of several documents proving the family bindings – Tazkira of the minor and marriage certificate of the brother indicating the same father`s name as well as photos and individual statements – the take charge request was rejected, since the family binding was doubted and arguing, that the Dublin III Regulation does not apply to family reunification to German citizens – which is a completely absurd interpretation.

The court made clear that in order to reunify unaccompanied minors to their relatives under Art. 8 Dublin III Regulation, it is sufficient that the relative is legally present in the other member state and that German citizens are indeed legally present in Germany.

The court further held that the documents handed in sufficiently prove the family link between the brothers and obliged Germany to accept the family reunion.

The full decision can be found here.




VG HANNOVER, Decision of 09 August 2019 – 2 B 3013/19


The case concerned a minor Syrian applicant, whose sister is residing in Germany as beneficiary of subsidiary protection. The take charge request under Art. 8 Dublin III Regulation was submitted after the required three months deadline from Greece to Germany, which was why Germany had rejected the take charge request.

The court held that indeed Art. 8 Dublin III Regulation was not applicable anymore due to the delayed submission of the take charge. However, due to the circumstances of the case – the fact that the minor was unaccompanied in Greece and had a close relation to his adult sister – Germany had to accept the family reunion under the discretionary clause (Art. 17 para 2 Dublin III Regulation).

The full decision can be found here.




VG ANSBACH, Decision of 02 July 2019 – AN 18 E 19.50459


Litigated independently by our cooperation lawyer Christopher Wohnig.

In the case concerned, a minor at the age of 11 is legally residing in Germany together with his adult siblings. He holds a humanitarian status. His parents and two minor siblings applied for asylum in Greece. The take charge request, sent by the Greek Dublin Unit, was rejected by the German Dublin Unit due to the lack of evidence for the family link and due to the fact that the minor is no beneficiary of international protection, as required by Art. 9 Dublin III Regulation, but only holder of a humanitarian status.

The court found that indeed Germany had to accept the family reunion under the discretionary clause (Art. 17 para. 2 Dublin III Regulation). The court convincingly found, that in cases, in which the binding criteria for family reunions are not met, an obligation to accept a take charge request can still arise under Art. 17 para. 2 Dublin III Regulation. According to the court, this is given in cases, in which special circumstances require a family reunion. In the case at hand, the court assessed that due to the young age of the minor in Germany (11 years), he was in special need of the care of his parents, which the adult siblings could not replace. The court therefore obliged Germany to accept the family reunion.

The full decision can be found here.




VG KARLSRUHE, Decision of 30 July 2019 – A 1 K 4345/19


The case concerns a Syrian applicant, whose wife resides in Germany as beneficiary of subsidiary protection. The Greek Dublin Unit submitted the wife`s written consent alongside with the take charge request under Art. 9 Dublin III Regulation. However, German Dublin Unit sent a letter to the wife, asking whether she consents with the family reunification. Initially, the wife did not receive the letter, since she had moved. Germany rejected the take charge request based on the fact that the wife had not answered the letter. Within the re-examination procedure, the wife submitted her consent twice to the German Dublin Unit, however, Germany rejected the case again.

The court found the rejection purely formal, since the consent was submitted with the initial take charge request and therefore assumes that Germany became responsible for the asylum application as of 10.03.2019 of the husband due to acceptance by default under Art. 22 (7) (cf. ECJ, judgement of 13 November 2018 - C-47/17, C-48/17, para. 67). The judge obliged Germany to accept the take charge request and further to work towards the husband`s transfer within six months after the acceptance by default came into effect, so until 10 September 2019. Only due to additional court proceedings (“enforcement proceedings”), the German Dublin Unit implemented the court decision and the applicant was successfully transferred in time to his wife in Germany.

The full decision can be found here.




VG MÜNSTER, Decision of 18 September 2019 – 2 L 820/19.A


This court decision did not concern the question, whether Germany has to accept the family reunion, but how the transfer of the unaccompanied minor, for whom an acceptance was already issued by Germany, would take place. The background: since 2017 no self-organized transfers are carried out anymore (as foreseen by Art. 7 para. 1 lit. a Dublin Implementing Regulation), only supervised transfers (Art. 7 para 1 lit. b) are carried out. Germany notes on any acceptance issued that „For safety reasons the Federal Republic of Germany does not accept voluntary transfers until further notice“. The consequence: since the supervised transfers are a higher organizational effort for the Greek authorities, the transfers regularly take place only in the last month of the six months transfer deadline. If applicants organized their transfer themselves and the Greek state issued a travel document and announced the transfer details to Germany in advance, transfers could possibly happen faster. The court agreed, that there is no reason for Germany to prohibit self-organized transfers and obliged Germany to announce towards the Greek authorities, that for the applicant Germany does not oppose a self-organized transfer. The court referred to jurisdiction of the Federal Administrative Court on the issue. You can find the whole decision here.




VG WIESBADEN, Decision of 23 September 2019 – 6 L 1158/19.WI.A


The case concerns two unaccompanied minor applicants in Greece, whose father resides in Germany. The father’s asylum application was rejected in Germany, since he was already recognized as refugee in Romania. The father appealed against his return decision to Romania in administrative court, the court decision is pending. The Greek Dublin Unit had sent a take charge request based on Art. 8 para. 1 Dublin III Regulation to Germany, which was rejected twice, arguing, that the father is to be returned to Romania and that the family reunion should happen there. The court decided, that Germany has to accept the take charge request under the discretionary clause (Art. 17 para. 2 Dublin III Regulation). The family could not be reunited in Romania, since the living conditions of single parent family with two minor children residing in Romania as beneficiaries of international protection would highly possible violate Art. 3 of the European Convention of Human Rights. Referring to recent CJEU jurisdiction, the court held, that the family, if reunited in Romania, could not cover their basic needs, even if the father worked full time. Since a family reunion in humane conditions could not take place in Romania, Germany has to exercise its discretion and accept a take charge request for the two minors.
The full decision can be found here.





 
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