National case details
Registration ID: A 11 S 2151/16
Instance: Appellate on fact and law
Case status: Pending
Area of law
Relevant principles applied
Preliminary rulingCase C-163/17
Administrative Court Karlsruhe
15 March 2017
Baden-Württemberg Higher Administrative Court, A 11 S 2151/16
CJEU, C-163/17 (pending)
Identification of the case
- Prohibition of torture and inhuman or degrading treatment or punishment (art. 4 CFREU)
- Paragraph 29 Asylum Act
Summary of the case
The applicant is a Gambian national who applied for asylum in Germany. The Federal Agency of Migration and Refugees (Federal Agency) requested his transfer to Italy, as a Eurodac request revealed that the applicant had previously applied for asylum in Italy. The Federal Agency denied the applicant’s request for asylum as inadmissible. The applicant was supposed to be transferred to Italy on 8 July 2015 but this was not possible because the applicant was not found at his apartment. The Federal Agency informed the Italian government that a transfer was not possible as the applicant had absconded and set a deadline for the transfer for 10 August 2016 (Art. 29 (2) Dublin-Regulation). Another transfer attempt failed when the applicant refused to board the aeroplane. The claim against the transfer was denied by the Administrative Court Karlsruhe. The Baden-Württemberg Higher Administrative Court as court of appeal stayed the proceedings and made a reference to the CJEU.
Annulment of the administrative decision, suspensive effect of the appeal.
- Is an asylum seeker absconding within the meaning of the second sentence of Article 29(2) of Regulation (EU) No 604/2013 1 only where he purposefully and deliberately evades apprehension by the national authorities responsible for carrying out the transfer in order to prevent or impede the transfer, or is it sufficient if, for a prolonged period, he ceases to live in the accommodation allocated to him and the authority is not informed of his whereabouts and therefore a planned transfer cannot be carried out?
- Is the person concerned entitled to rely on the correct application of the provision and to plead in proceedings against the transfer decision that the transfer time limit of six months has expired, because he was not absconding?
- Does an extension of the time limit provided for under the first subparagraph of Article 29(1) of Regulation (EU) No 604/2013 arise solely as a result of the fact that the transferring Member State informs the Member State responsible, before the expiry of the time-limit, that the person concerned has absconded, and at the same time specifies an actual time limit, which may not exceed 18 months, by which the transfer will be carried out, or is an extension possible only in such a way that the Member States involved stipulate by mutual agreement an extended time limit?
- Is transfer of the asylum seeker to the Member State responsible inadmissible if, in the event of international protection status being granted, he would be exposed there, in view of the living conditions then to be expected, to a serious risk of experiencing treatment as referred to in Article 4 of the Charter of Fundamental Rights?
- Does this question as formulated still fall within the scope of application of EU law?
- According to which criteria under EU law are the living conditions of a person recognised as a beneficiary of international protection to be assessed?
The Baden-Württemberg Higher Administrative Court made a reference for a preliminary ruling of the CJEU, addressing several questions on the interpretation of the Dublin III Regulation. It asked inter alia under which conditions an applicant for asylum is considered to “abscond” according to Article 29(2), in particular if it is sufficient that the person is not present in the flat assigned to him by the agency or if he has to intentionally impede his transfer to another Member State. The Court also asked whether the transfer of an applicant is excluded if he would run a real risk to be subject to a treatment in the sense of Article 4 CFREU if he was granted international protection in the Member State he is supposed to be transferred to.
Role of the Charter and role of the general principles on enforcement
The Court referred to Article 4 CFREU and asked the CJEU whether the transfer of an applicant is excluded if he would run a real risk to be subject to a treatment in the sense of Article 4 CFREU if he was granted international protection in the Member State he is supposed to be transferred to.
The Court made a reference to an effective protection of refugees, stating that even the best conditions upon reception would not ensure an effective protection if the applicant runs a real risk of being subject to a treatment in the sense of Article 4 CFREU after the recognition of international protection.
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
The Baden-Württemberg Higher Administrative Court made a reference for a preliminary ruling of the CJEU, posing several questions on the interpretation of the Dublin III Regulation.
Clarification on the interpretation of the Dublin III Regulation.