Here you can ask, answer and find questions surrounding the topic: arriving in Germany
Hello.

In July 2018 I applied for asylum in Germany.

On 8 August 2018 France took a charge.

In September 2018 I left Germany by myself.

In February 2019 I applied for asylum in Norway. And in March 2019 Norway officially transferred me to France.

In October 2019 I applied for asylum in Germany again. On 30 October 2019, Germany put my fingerprints in Eurodac.

But Germany had to send a take back request to France within 3 months under Article 23 of Regulation 604/2013, but Germany didn't. Instead Germany, by old consent (7 August 2018), transferred me to France on February 4, 2020.

It turns out that Germany mistakenly transferred me to France as Germany has become a responsible country according to Article 23 of the Regulation.
asked Jun 7 in Asylum proceedings by liza173
Dear @liza173, Welcome back to the Wefugees Community and thank you for reaching out to us again. I remember that you talked about your situation with our dear @alla_fka (https://www.wefugees.de/809853/dublin-procedure-after-18-months) before. As she is also quite an expert regarding the Dublin regulations, she maybe can give some advice and further information here again. All the best, Meike

Please log in or register to answer this question.

1 Answer

0 votes
Hallo,

the rule in the Dublin Regulation about 3 month time for a request gives to you as an asylum seeker no individual subjective right which could be enforced in the court. It is the rule for Dublin states. That means it was perhaps possible for France 2019 to reject your deportation with the reason that it didn't correspond to the Dublin rules. If France agreed, you had normally no chance to do something, even that time. The courts in Germany would have reject your claim, with greatest probability. And 2 years later anyway.
answered Jun 28 by Alla_fka
Hello liza173,
it took time to prepare this answer because I wanted to ask the lawyer, who represented Jawo in the administrative court in Germany. I‘ve known Mr. Münch personally for years and I‘d discussed this case with him even before the CJEU made its judgement, so I was really sure that your problem wasn’t dealt with there.
So I asked him, received his answer, confirming my understanding of Jawo, and then asked again, because I remembered one more Dublin case of CJEU, which is in my opinion is partly similar to yours.

Here is the result of my request (naturally, I had to translate it in English). The good news is that he doesn't definitely deny the possibility of success in your case.

Jawo (C 163/17, Judgement on the 19.03.2019) https://curia.europa.eu/juris/document/document.jsf?text=&docid=211803&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5244949
says nothing about the obligation to take back after (allegedly) illegal transfer.
Jawo also says nothing about whether in the Dublin transfer procedure the person concerned can refer to the violation of the deadlines of Art. 21 Dublin III Regulation (3 months for a take back request without the Eurodac hit or 2 months after receiving the Eurodac hit).
And Jawo does not say anything about whether the person concerned can invoke the violation of the deadline of Article 23 (take back procedure) in a retrial.

It is clarified in the case law that the person concerned can refer to the expiry of the transfer period. CJEU Judgements:  7.6.2016 – C 63/15 – Ghezelbash, 26.7.2017 – C-670/16 – Mengisteab, 25.10.2017 – C-201/16 – Shiri
This expiry must be treated as an individual (subjective) right.

The request deadline of Art. 21 (take charge procedure) is expressly dealt with in Mengisteab. The person concerned can also plead their violation.

Your case is of Art. 23: a take back request after a person had already been transferred to the responsible country, came back illegally and made a new asylum application.
A take back request after transfer and returning was dealt in Case Hasan (25.01.2018, C - 360/16). But it is a different constellation. You made a new asylum application after returning to Germany, so the take back request is to be sent on the basis of Art 23. Hasan is the case of Art. 24: the person returned and made no new asylum application.
Nevertheless some parts of this decision can refer to your case.

„The CJEU found that a Member State to which an applicant has returned after being transferred is not allowed to transfer that person anew to the requested Member State without respecting a take back procedure. Thus, an applicant cannot be transferred to another Member State on the basis of a transfer decision previously adopted in his regard. On the contrary, a further transfer cannot be envisaged unless the situation of that person has been re-examined for the purpose of verifying that responsibility has not been transferred to another Member State following that person’s first transfer. According to the Court, this would not jeopardise the objective of the rapid processing of applications for international protection, since this re-examination would merely entail taking account of the changes that have occurred since the first transfer decision was adopted. “

Source:  https://www.asylumlawdatabase.eu/en/content/cjeu-case-c-36016-hasan
Text of the decision:
https://curia.europa.eu/juris/document/document.jsf?text=&docid=198763&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1164870

Mr. Münch (the lawyer in Jawo case) also wrote to me:
In my opinion, a right to the cancellation of an illegal transfer is not excluded, but I have never had such a case. Your referral to a knowledgeable lawyer was spot on.

Other two lawyers who I’d spoken before were sure that it wouldn’t work. But as I’d already told you, you can always try. The question is very complicated and - who knows – perhaps you have a chance to win. If you try I will certainly wish you success.
Thank you so much for your reply, you are very kind!

I think the German authorities have neglected my case and therefore missed the fact that I was transferred from Norway to France in 2019.
I think the German authorities thought that I had not been in France since my first asylum request in Germany in 2018.
German authorities normally check with Eurodac-System und if they made it in your case, they had to find out about your Dublin depotation from Norway to France. It must be in your file.
But it is all just a guesswork! If you really want to know how it was, you must take a lawyer with a good expertise in Dublin procedure, who will ask for your foreigner file from BAMF Germany (migration authority which decides about asylum and Dublin) and check what's really happened.
Im principle you have a right to ask for information about your file yourself but it is always the question if BAMF reacts to your request as a private person. Especially if you are not in Germany.

I also noticed that in March you made a similar question on this platform which I answered in April, but then you wrote about Netherlands, not Norway.
The decision of the German court stated that I applied for asylum in Norway after Germany, but Norway did not transfer me to France. In reality, I was only in Norway for a month in a closed migrant centre and was officially transferred from Norway to France in March 2019! I told the bamf workers about it and wrote to the court about it, but they did not want to listen me, the German authorities did not want to look into it and quickly transferred me to France without a new request, which is a violation...

Especially since, according to Article 34 of the Regulation 604/2013, Germany had the right to investigate and ask Norway whether I had been transferred to France or not.

I'm in the Netherlands now, it's a similar situation.
I don't think I can give you more advice that before. I wouldn't hope that BAMF would be prepared to make investigation itself after they already transferred you to France (with the agreement of this country).
I wrote to you about decisions on EU-level which can perhaps support your point of view (about the mistake of BAMF and the responsibility of Germany). But you definitely need a very good lawyer and I don't beleive that the chance is high. And, moreover, it will take years.
3,776 questions
4,512 answers
6,127 comments
135,924 users