German Administrative Court (VG Wiesbaden) Doubts Legality of the Family Reunification Cap
A single judge of the VG Wiesbaden adopted an interim measure providing that the German authorities have to communicate to the Greek authorities that applicants – who have close family members legally resident in Germany – have to be transferred to Germany.
The case concerned a Syrian minor who is an asylum seeker in Germany. His family members applied for asylum in Greece, they wanted to be reunited as it is foreseen by the Dublin-III-Regulation (Art. 8-10). Germany has accepted the request for taking over the responsibility for the family members in Greece on 30th March 2017. The family has not been transferred yet. The 6-months deadline for the transfer expires on the 30th September 2017.
One of the relevant questions was whether Germany has any influence on the time and the procedure of the transfer of the persons staying in Greece. Thus, it was a main point of the judgement whether an agreement to limit the transfers to a fixed number per month or to slower them could be legal. The judge is convinced – which is the yardstick in an interim measure procedure – that Germany can influence the transfers. The lawyer had argued that there have been hints that there is any kind of agreement that Germany and Greece at least want to slower the transfers – irrespective of the deadlines. In practice, the judge is convinced that Germany influences the transfers either through the liason-officer or by other means and therefore asked the German Dublin Unit to work towards a transfer by contacting the Greek administration.
The judgement underlines the “absolute effect” (binding nature) of deadlines in the Dublin-procedure. The deadlines foreseen by the Regulation are binding and not at the disposal of the Member States but rather regulate responsibilities so that Greece would be responsible for taking charge of the asylum seeker with expiry of the deadlined. The judge also underlined that the responsibilities according to the Regulation convey individual rights for the asylum seeker. Both issues have been recently highlighted by the ECJ again (Judgement Mengestaeb). A third consideration is remarkable: the judge emphasises that the humanitarian responsibility rules of the Dublin-III-Regulation that take in account other persons – just as family members in Art. 8-10 – convey subjective rights for the persons taken into account as well. That is why the family members in Germany can claim for a transfer of the person staying in Greece.
The judgement provides a relevant and very welcomed clarification of the obvious legal situation. A cap is illegal and there is an entitlement for the asylum seekers to be transferred to the responsible state in time.