Germany – Administrative Court Regensburg, Order of 9 January 2019 – RN 6 S 18.50495

The Regensburg Administrative Court solely dealt with the question whether the applicant had "absconded" pursuant to Art. 29 para. 2 sentence 2 Dublin III Regulation and whether, as a result, the six-month transfer period starting on the date of the decision of 7 December 2017 was replaced by an eighteen-month period. The court denied this and, with regard to the controversial definition of "abscond", agreed with the reasoning of the Administrative Court of Baden-Württemberg (order for reference to the ECJ of 15 March 2017 - A 11 S 2151/16 - recital 20) that a "withdrawal" by escape must be established. In this context, it is disputed whether the term "abscond" in Art. 29 para. 2 Dublin III Regulation contains an element of planning. In this case, absconding does not already apply if the person concerned is simply not present. However, the court found that a comparative legal interpretation of the French, English and German versions of the regulation did not necessarily lead to this conclusion. Nor could such a requirement be deduced from the genesis of the norm. As to the purpose of the regulation, it was stated that it was not a matter of sanctioning the conduct of the person concerned but of ensuring the "effective functioning" of the Dublin system. This purpose would be endangered if the transfers did not take place in a timely manner. There would also be difficulties of proof, if it had to be proved to the persons concerned that they had left their accommodation in order to avoid the transfer. For these reasons, the court found that an element of planning was not required.

According to the findings of the court, it is necessary that the asylum applicant was not available to the relevant authorities for a longer period of time. In order to determine whether a longer period of time had passed, the relevant circumstances of the individual case had to be taken into account. The court stated that the legislature considered at least three days to be too short to consider absconding drawing a conclusion from the three days that activate the obligation to report a change of residence pursuant to Section 50 para. 4 of the Residence Act (Aufenthaltsgesetz – AufenthG). However, the court was able to leave the question of the exact duration open, because:

It has not been proven that the applicant was not available to the relevant authorities for a longer period of time. The authority had not made sufficient observations about why the applicant had not been found during the attempt to deport him on 23 April 2018. It was also not evident on which facts the findings in the District Office's communication of 6th May 2018, that the applicant had not been in the accommodation for two weeks, were based. If there is a well-founded suspicion that an asylum applicant absconded, corresponding findings must be made. If no measures are taken, doubts as to the absconding of an asylum applicant must remain to the detriment of the Federal Office which has relied on the extension of the time limit pursuant to Art. 29 para. 2 sentence 2 Dublin III Regulation.