1. Starting point; Legal framework under EU-law:

In order to achieve the objective, laid down by the European Council meeting in Strasbourg on 8 and 9 December 1989, of the harmonisation of their asylum policies, the Member States signed in Dublin, on 15 June 1990, the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (OJ 1997 C 254, p. 1; ‘the Dublin Convention’). The Dublin Convention entered into force on 1 September 1997 for the twelve original signatories, on 1 October 1997 for the Republic of Austria and the Kingdom of Sweden, and on 1 January 1998 for the Republic of Finland.

The conclusions of the European Council meeting in Tampere on 15 and 16 October 1999 envisaged, inter alia, the establishment of a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to a place where they again risk being persecuted, that is to say, maintaining the principle of non-refoulement.

The Amsterdam Treaty of 2 October 1997 introduced Article 63 into the EC Treaty, which conferred competence on the European Community to adopt the measures recommended by the European Council in Tampere. That treaty also annexed to the EC Treaty the Protocol (No 24) on asylum for nationals of Member States of the European Union (OJ 2010 C 83, p. 305), according to which those States are to be regarded as constituting safe countries of origin in respect to each other for all legal and practical purposes in relation to asylum matters.

The adoption of Article 63 EC made it possible, inter alia, to replace between the Member States, with the exception of the Kingdom of Denmark, the Dublin Convention by Regulation No 343/2003, which entered into force on 17 March 2003. It is also on that legal basis that the directives applicable to the cases in the main proceedings were adopted, for the purpose of establishing the Common European Asylum System foreseen by the conclusions of the Tampere European Council.

Since entry into force of the Lisbon Treaty, the relevant provisions in asylum matters are Article 78 TFEU, which provides for the establishment of a Common European Asylum System, and Article 80 TFEU, which reiterates the principle of solidarity and fair sharing of responsibility between the Member States.

Under Council Regulation (EC) No 343/2003 of 18th February 2003 establishing the criteria and mechanism for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p.1), the so called Dublin Regulation, asylum applicants must, in principle, be dealt with by the country by which they first entered the EU. This is leading to increased migratory pressure on Member States with an external Shengen land border.

EU Charter of Fundemantal Rights an Freedoms, Art. 18, Art. 47

Council Directives 2003/9EC (minimum standards for the reception of asylum seekers),

2004/83/EC (qualification directive),

2005/85/EC (procedures directive)

Council Regulation (EC) No. 343/2003 (….).

What is the true meaning of Art. 3 (2) of the regulation?

How should Member State’s authorities and courts evaluate wether the situation in another Member State poses a „serious risk“ to applicants for international protection?

What is the standard for establishing that a transfer under the Dublin system would amount to a breach of the Charter?

2. Adjudication of the ECJ and the ECHR:

a. ECJ

Case C-19/08 , judgement of the Court (4th chamber) of 29th January 2009 following a reference for a preliminary ruling from the Stockholm Kammerrätten I in a case of Armenian nationals v. the migration office: Art. 20 (1) (d) and Art. 20(2) of the regulation (six month take back term) are to be interpreted as meaning that, where the legislation of the requesting Member State provides for suspensive effect of an appeal, the period for implementation of the transfer begins to run, not as the time of the provisional judicial decision suspending the implementation of the transfer procedure, but only as from the time of the judicial decision which rules on the merrits of the procedure and which is no longer such as to prevent its implementation.

Cases C-411/10 and C-493/10 , judgement of the Court of 21st December 2011; reference for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and the High Court (Ireland), by decisions of 12 July and 11 October 2010, lodged at the Court on 18 August and 15 October 2010 respectively:

1. The decision adopted by a Member State on the basis of Article 3(2) of the regulation, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that regulation, implements European Union law for the purposes of Art. 6 TEU and/or Article 51 of the CFR.

2. European Union law precludes the application of a conclusive presumption that the Member State which Article

3(1) of the regulation indicates as responsible observes the fundamental rights of the European Union.

Art.4 of the CFR must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of the regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.

Subject to the right itself to examine the application referred to in Art.

3(2) of the regulation, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.

The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of the regulation.

3. Art. 1, 18 and 47 of the CFR do not lead to a different answer.

Several cases referring to the regulation have been addressed to the ECJ pending for decision:

Case C-130/08 , action brought on 31st March 2008 from the comission against the Helenic Republic: establishing that H.R. Has failed to fullfill its obligations under Art. 3(1) of the regulation by failing to adopt the laws, regulations and administrative measures necessary to ensure, in every case, examination of the merrits of asylum applications of third-country nationals who are transferred to Greece under the regulation.

Case C-620/10, reference for a preliminary ruling lodged from the Stockholm Kammarräten I on 27th December 2010: does the withdrawal of an asylum application (not) affect the possibility of applying the regulation? Is the stage in the process at wich the asylum application is withdrawn relevant in answering the question?

Case C-493/10 , reference for a preliminary ruling from the High Court of Ireland made on 15th October 2010 in a case of third-country nationals v. Refugee Applications Commissioner, MoJ: Is the transferring Member State under the regulation obliged to assess the compliance of the receiving Member State with Art. 18 of the CFR, Council Directives 2003/9EC (minimum standards for the reception of asylum seekers), 2004/83/EC (qualification directive), 2005/85/EC (procedures directive) and Council Regulation (EC) No. 343/2003 (Dublin II Reg.)? If the answer is yes, and if the receiving Member State is found not to be in compliance with one or more of those provisions, is the transferring Member State obliged to accept responsibility for examine the application under Art. 3 (2) of the regulation?

b. ECHR:

Case No. , M.S.S. v. Belgium and Greece, decision by 21st January 2011

3.Dublin II procedure under German law:

a. Legal framework

The Asylum Procedure Act stipulates as follows:

Section 27a Responsibility of another country

An application for asylum shall be inadmissible if another country is responsible for processing an asylum application based on European Community law or an international treaty.

Section 34a Deportation order

(1) If the foreigner is to be deported to a safe third country (Section 26 a) or to a country responsible for processing the asylum application (Section 27a), the Federal Office shall order his deportation to this country as soon as it has been ascertained that the deportation can be carried out. This shall also apply if the foreigner has applied only for recognition of refugee status or if he has withdrawn the asylum application prior to the decision by the Federal Office. No prior notification announcing deportation nor deadline shall be necessary.

(2) Deportation pursuant to (1) may not be suspended pursuant to Sections 80 or 123 of the Code of Administrative Court Procedure.

In practice the aliens administration issues deportation orders comparably late, often at the effective date of the order, so that the persons concerned are not able to seek for a decision of a court [1].

The German Ministry of Interior has issued an order for exposure of Dublin II deportations to Greece untill 12th January 2013.

b. Adjucation of the national German courts

Federal Constitutional Court, decision of 14th May 1996 -2 BvR 1938/93-, BVerfGE 94, 49(99f) on the introduction of the safe third country concept: The provision of sec. 34a par. 2 of the Asylum Procedure Act has to be reduced against its wording in a way that does not prohibit preliminary legal protection in cases of deportations to countries defined by sec. 34a par.1, namely such under the Dublin II Regulation, but such legal protection is possible in exceptional cases.

Federal Constitutional Court, decisions of 22nd December 2009 - 2 BvR 2879/09 -, NVwZ 2010, 318 and by 15th July 2010 – 2 BvR 1460/10 -: There does not exist any obligation under EU-law for an exclusion of preliminary legal protection in deportation cases under the Dublin II Regulation. The possibility for provision of preliminary protection by a specialized court is foreseen under art. 19 par. 2 sen. 4 and art. 20 par.1 lit. e sent. 4 of the Dublin II Regulation itself.

Admin. Court Frankfurt/M., decision as of 6th July 2011 – 7 L 1604/11 -: An asylum applicant who limitates his or her application to subsidiary protection cannot be deported to another Member State on the basis of Regulation EC Nr. 343/2003.

High Admin. Court of Hessia, decision of 23rd August 2011 – 2 A 1863/10.Z.A.: the term for deportation under art. 19 par. 3 sent. 1 and art. 20 par. 2 sent. 1 of the Dublin II Regulation starts after the finalization of the main proceedings of the first instance court.

Admin Court Frankfurt/M., decision as of 28th September 2011 – 7 L 2728/11.F.A. -: If an asylum applicant was deported to Italy on the basis in a Dublin procedure and he or she returns to Germany, a redeprtation to Italy requieres a new deportation order and a new decision under art. 20 (1) of the regulation.

High Admin. Court of Northern-Westfalia, decision of 1st March 2012 – 1 B 234/12.A -: refers to the decision of the ECJ of 21st December 2011 to stop a Dublin II-deportation to Italy

c. Current developments:

A famous German asylum lawyer has issued an expertise report [2] establishing that the Asylum Procedure Act, e.g. the exclusion of priliminary injunctions against a Dublin deportation order under art. 34 a par. 2, is not in compliance and therefore demands the cancellation of the provision.

In the same line is the position of amnesty international Germany [3], who additionally demands the incorporation of priliminary court procedure in teh Dublin regulation as well as an early warning mechanism with regard to systemic deficiencies in national asylum systemsa mandatory oral hearing in the Dublin procedure.