Germany – Administrative Court Muenster, 20 December 2018, 2 L 989/18.A

The Court first stated that both applicants had a subjective right to request that Germany is recognised as the Member State responsible for the asylum application of the younger brother under Article 8(1) of the Dublin III Regulation. The Court argued that the criteria determining the Member State responsible for an asylum application laid down in Articles 8 to 10 of the Dublin III Regulation were an expression of the fundamental rights guaranteed under Article 8 ECHR as well as Articles 7 and 24 CFREU, which have to be complied with when applying the Dublin III rules.

Correspondingly, the refusal to assume responsibility for the examination of an asylum application by the Member State responsible in accordance with these criteria must also be justiciable to ensure that the justiciability of such a right is not undermined. The latter must be particularly protected when denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor, which must be treated with priority as overarching goals of the Dublin III framework. Consequently, the provisions of the Dublin III Regulation on family reunification evidently aim to protect family members living in the Member State responsible, in this case the older brother living in Germany, who can then rely on the provisions on their own account.

Furthermore, the Court held that the BAMF was responsible for the examination of the asylum application of the younger brother under Article 8 of the Dublin III Regulation. The younger sibling must be regarded as an unaccompanied minor within the meaning of Article 2 lit. j of the Dublin III Regulation as the cousin was not ‘an adult responsible for’ him in this sense. Whether that was the case should be determined in line with the relevant law or practice of the Member State where the minor was staying. According to Greek law, to admit that the cousin is responsible for the minor would require the transfer and actual exercise of parental care. The appointment of the cousin as provisional caregiver/temporary guardian did not amount to such transfer since it constituted temporary representation but not permanent legal guardianship.

Additionally, the Court found that the reunification with his brother was also in the best interests of the minor. This general rule is also supported by the specific circumstances of this case: the brother was the closest relative, being the only member of his nuclear family in Europe, and the child had repeatedly voiced the absolute wish to live with his brother in Germany. The Court further considered that the cousin could not be considered as an alternative caregiver as he had abused his position as a representative, in order to attempt to personally benefit from the family reunification. Moreover, the relationship with the cousin had deteriorated dramatically, so that the first applicant had to be physically separated from the cousin in order to guarantee his safety. Finally, the Court argued that the cousin was neither a family member within the meaning of Article 2 lit. g nor a relative within the meaning of Article 2 lit. h of the Dublin III Regulation.

The Court also held that Germany’s responsibility has not lapsed due to the expiration of time limits. The fact that Greece submitted the request to take charge only after the time limit of three months (cf. Articles 21(1), 20(2) of the Dublin III Regulation) had expired could not be taken into account to the detriment of the child. The responsibility for the delay could not be attributed to him but only to the Greek authorities and his cousin. In particular, the Court took into account that the Greek authorities insisted on a written request for family reunification without any basis in EU law and contrary to the best interests of the minor. The cousin further delayed the procedure by submitting it after trying to be included in the request.

Moreover, the strict application of Article 21(1) of the Dublin III Regulation in cases of family reunification that are based on the criteria laid down in Articles 8 to 11 of the Regulation would have the consequence of making such reunification permanently impossible due to the expiration of procedural time limits. Although time limits aim at streamlining and accelerating the Dublin procedure, they are also set to serve the interests of the applicant. In light of the family and child-related guarantees, any conflict between those and procedural time limits may only be resolved in a way that the Member State accepts a take charge request even after the time limit has expired. The same considerations applied to the lack of compliance on behalf of the Greek authorities with the time limit to request a re-examination. The Court found the BAMF's reference to the Greek authorities’ non-compliance was not made in good faith since the BAMF itself did not comply with any time limits.

In any case, the applicants had a right to request the activation of the sovereignty clause under Article 17(2) of the Dublin III Regulation. In the Court's view, the overarching importance of the right to family unity and the best interests of the child, transform Article 17 discretion into an obligation of the Member State. In light of the close family ties between the applicants as siblings there were humanitarian grounds for family reunification. No further special relationship or interdependency is required beyond such established family ties.

Lastly, the Court considered that pending the decision of the Greek authorities on the merits of the child’s asylum claim created a situation of urgency that justified an interim measure. If the case was decided in Greece, the applicant would no longer fall within the scope of the Dublin III Regulation and would remain separated from his brother for an unforeseeable period of time.