Decision of Court of Munich: Refusals at the border are illegal - and thus the "Seehofer Deal"
It's almost exactly a year ago: The dispute over whether direct readmissions to Greece can be carried out at the German-Austrian border almost brings the German coalition to a standstill. The Chancellor urges a pan-European solution, Horst Seehofer delivers bilateral agreements with Spain and Greece. Even the circumstances at that time were questionable - not only in terms of the rule of law. The agreements were illegally kept secret from Parliament and the public (see our recent opinion).
Now the Administrative Court Munich hands over an unambiguous birthday present: The "procedure" laid down in the agreement violates applicable European law.
The deported person must be brought back to Germany immediately.
We are working on a Policy Note on the procedures carried out under the agreement that is to be published shortly.
Further Reading: Legal Arguments of the Court and Procedure
The Afghan citizen crossed the German-Austrian border by train in May 2019, where the Federal Police carried out an entry check after crossing the border. The Federal Police interviewed him one day later and found a EURODAC hit Cat. 1 in Greece (as well as in Austria). The police issued a refusal of entry "because there are indications that the above-mentioned state is obliged by the [Dublin III Regulation] to take back the applicant. A corresponding procedure for take charge or take back procedure was initiated (§ 18 (2) no. 2 German Asylum Act)" (para. 4 of the decision).
The Federal Police did not carry out any further examination. Nor did a hearing in the proper sense took place. In its action, the Federal Police referred solely to the German-Greek Arrangement and sent only a "Notification of refusal of entry" to Greece. In court, the Federal Police legally justified its action with a so-called "Pre-Dublin procedure" - a procedure for determining the competence of the Member State which is solely responsible for carrying out the Dublin procedure. In the view of the police, the provisions of the Dublin III Regulation should not be complied with in the “Pre-Dublin procedure”. The person concerned was sent back on the same day.
In Greece, the person concerned was arrested immediately, even after more than 2.5 months he has still not been released. His asylum procedure in Greece was not continued despite his application.
The AC Munich (18th Chamber, single judge) obliges the Federal Republic of Germany to immediately work towards returning the applicant to Germany at Germany`s expense and to grant him temporary entry to Germany.
"The obligation of the respondent to return the applicant from Greece to Germany at her own expense and then to grant provisional entry is absolutely necessary in the present case in order to grant effective legal protection" (para. 23).
The judge notes that there is a right to the elimination of consequences under public law, because it is above all unclear on which European law basis the Federal Police bases its action.
Regarding the Dublin III Regulation the judge states:
"Moreover, the Court has considerable doubts as to the legality and existence of a so-called "pre-Dublin procedure". By assuming a so-called "pre-Dublin procedure" in the case of an applicant actually staying in the territory of a Member State, the subjective procedural rights of the applicants under the Dublin III Regulation and its objective could be bypassed. This clarifies, that even in a “refusal of entry” situation, in order to transfer an applicant from Germany to Greece, a Dublin procedure (take back request – acceptance – possibility for legal remedies with suspensive effect) needs to be carried out. As part of this procedure, it is necessary to examine potential human rights violations in Greece, which could lead to a responsibility of Germany for the asylum procedure according to Art. 3 para 2 or Art. 17 para 1 Dublin III Regulation, which was not done by the acting authorities.
One reason for the judge to order the transfer back of the applicant in the interim measure procedure was the interruption of his asylum procedure in Greece; the judge found a risk, that the asylum case of the applicant gets closed without any examination of his asylum claim in substance in any EU member state.
Finally, the judge obviously assumes that Germany has already become responsible for the asylum application because no effective take back request pursuant to Article 23 (1) of the Dublin III Regulation has been sent and the two-month period of para 2 has therefore expired (para. 56).
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