Applicant v Federal Office for Migration and Refugees
DE: The Higher Administrative Court ruled on the suspension of the execution of the transfer decision as a result of the COVID-19 pandemic
The case concerned the suspension of a transfer decision in a Dublin procedure, due to the COVID-19 pandemic and the question of whether the suspension moves the case within the framework of Article 27 para. 4 of the Dublin III Regulation.
According to Article 27 para. 4 of the Dublin III Regulation provides that "Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review."
The court held that an official suspension of the execution of the transfer decision, which is based solely on the actual impossibility of the transfer due to the entry restrictions imposed across the EU as a reaction to the COVID-19 pandemic, without this serving for the legal examination of the transfer decision, the suspension decision does not move the case within the framework specified in Article 27 para. 4 of the Dublin III Regulation.
To decide in this way the court looked at the wording of Article 27 para. 4 of the Dublin III Regulation, based on which it held that it can be inferred that the Member State's suspension decision within the meaning of Art. 27 (4) Dublin III Regulation is a legal review that must be linked to the transfer decision. The court also looked at the the heading of Art. 27 Dublin III Regulation ("Appeals" or "Remedies" or "Voies de recours") and its systematic classification in Section IV of the Regulation ("procedural safeguards" or "procedural safeguards" or " Garanties procédurales ”) which the court considered that it clearly shows that the aim of the provision is to guarantee the possibility of a legal examination of the transfer decision made by the member states and thus effective legal protection for applicants and other persons within the meaning of Art. 18 Paragraph 1 Letter c or d Dublin III Regulation. The court also considered the Dublin system as a whole and the conflicting interests at stake.
For the particular case under analysis, the court noted that there were actual obstacles to deportation in the form of border closings and travel bans that existed throughout the EU and these obstacles led the authorities to suspend the execution of the deportation decision in all Dublin procedures. The suspension decision was made solely on the basis of this temporary actual impossibility of the transfer and not because of a legal examination of the transfer decision, for example because of an unclear legal or factual question. In addition, Art. 29 para. 1 subpara. 1 Dublin III Regulation, separates the issue of the actual possibility of transfer from the issue of the suspensive effect of a legal review of the transfer decision and the wording shows that regardless of the practical possibility of transfer, the transfer deadline is six months after acceptance of the admission or reopening application by another member state or the final decision on a legal review with suspensive effect.
Thus, the court held that the suspension decision provided for in national law (Section 80, Paragraph 4, Clause 1 VwGO) cannot suspend the transfer period under the Dublin III Regulation.
COVID-19/Emergency measures; Dublin procedure;
EASO Courts and Tribunals Network
Germany, High Administrative Courts (Oberverwaltungsgerichte/Verwaltungsgerichtshöfe), Applicant v Federal Office for Migration and Refugees, 1 LA 120/20, DE:OVGSH:2020:0709.1LA120.20.00, 09 July 2020. Link redirects to the English summary in the EASO Case Law Database.