Case summary

Deciding Body
Federal Constitutional Court
Bundesverfasungsgericht
Germany
National case details
Date of decision: 11.04.17
Registration ID: 2 BvR 809/17
Instance: Constitutional
Case status: Final
Area of law
Migration and asylum


Asylum
Return

Life-cycle diagram

  1. 15 March 2017

    Administrative Court Gießen, 7 L 1863/17.GI.A

  2. 11 April 2017

    Federal Constitutional Court, 2 BvR 809/17

Identification of the case

Fundamental rights involved
  • Right to an effective remedy and to a fair trial (art. 47 CFREU)
National law sources
  • Article 19(4) Basic Law, Right to effective judicial remedy

Summary of the case

Facts of the case

The applicant is an Albanian national whose application for asylum was denied by the Federal Agency of Migration and Refugees as “manifestly unfound” on 13 November 2015. His subsequent claim was denied by the Administrative Court Gießen. His renewed application was denied by the Federal Agency on the ground that the applicant had only stated reasons he had already referred to in his first application, namely his homosexuality and the persecution based on his sexual orientation. His new submission of being recognizable as transsexual would not constitute new facts justifying a re-opening of the proceeding. The Administrative Court Gießen denied the applicant’s claim to not authorize his deportation to Albania, holding that the applicant did not need judicial protection since the immigration authority had declared not to execute the deportation within the same month. Furthermore, the claim would aim at an anticipation of the main proceedings.

Measures, actions, remedies claimed/applied

Claim to not authorize deportation.

Reasoning (legal principles applied)

The Federal Constitutional Court suspended the deportation of the applicant for the time until a decision about his constitutional complaint. It held that the constitutional complaint was neither obviously founded nor obviously unfounded. The applicant had provided plausible reasons for a violation of his right to effective judicial protection under Article 19(4) Basic Law. The reasoning of the Court, the applicant did not need judicial protection since the immigration authority had declared not to execute the deportation within the same month would result in the applicant’s duty to reiterate his claim continuously as he would not be informed about the date of his planned deportation. Invoking the prohibition of an anticipation of the main proceedings would make it impossible to obtain a decision on interim measures against a deportation. The balancing of the interests at stake justified suspending the deportation since the applicant ran the risk of being deported before obtaining a decision on his claim.

Elements of judicial dialogue

Vertical dialogue type
  • Dialogue between high court - lower instance court at national level

Additional notes on the decision

External links

Case author

Lilly Weidemann, Administrative Court Bremen

Published by Pietro Messina on 1 October 2017

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