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The case concerned the removal of a Syrian national from Germany, where he had expressed the wish to request asylum, to Greece, on the day of his arrival (4 September 2018) under an administrative arrangement concluded between the two countries in 2018. The case also concerned the applicant’s detention in Greece.

Before the ECtHR, the applicant complained under Article 3 and 13 that he was removed from Germany without his asylum application being registered and without an assessment of the risk of chain refoulement from Greece to Türkiye and to Syria. He also complained that the German authorities did not assess the risk of him being detained in Greece in inadequate conditions without any individual guarantees being obtained from Greece.

Under Article 5(1) and (4) of the European Convention that his detention was arbitrary and that he did not an effective remedy to challenge its lawfulness.

The ECtHR found a violation of the procedural aspect of Article 3 for the applicant’s removal to Greece. The court noted that Germany knew or ought to have known about the general shortcomings in the Greek asylum system especially considering the information available from the European Commission, the Committee of Ministers of the Council of Europe, UNHCR and especially after the ECtHR judgment in MSS v Belgium and Greece, as in its aftermath, Dublin transfers to Greece were suspended for several years. This meant that the German authorities had an insufficient basis to presume in general that after removal to Greece, the applicant would have access to an adequate asylum procedure that would protect him against refoulement and that he would not risk being exposed to treatment contrary to Article 3.

The court distinguished between this case and Ilias and Ahmed, as in this case the return took place based on an administrative arrangement between Germany and Greece so that the Greek authorities were notified of the removal whereas in Ilias and Ahmed, the applicants were induced to enter Serbia illegally, which exacerbated the risks of denial of access to asylum procedures in Serbia. The court further observed that the arrangement between Germany and Greece did not include provisions guaranteeing access to an effective asylum procedure in Greece and protection from treatment contrary to Article 3, such as inadequate conditions of detention or living conditions for asylum applicants. In addition, the German authorities did not seek individual guarantees for the applicant, nor did they argue that they had assessed such risks prior to removal and the removal order did not include an individual assessment of whether he would run a real risk of being denied access to an asylum procedure in Greece and whether he would face inadequate conditions of detention in Greece.

The court also observed that the German authorities did not provide initially the correct information to the applicant about the country to which he was going to be removed, the legal basis for removal and information on challenging that decision. The applicant was provided the order shortly before departure for the airport, was not in Arabic, no interpreter was present, and he was not assisted by a lawyer.

The court concluded that Germany failed to discharge its procedural obligation under Article 3 of the Convention to ensure that the applicant was not at risk of being denied access to an adequate asylum procedure in Greece and would not be detained in conditions contrary to Article 3. It held that the removal from Germany to Greece was in violation of Article 3 of the Convention.

The court observed that the applicant managed to lodge another asylum application in Greece, assessed in the regular asylum procedure as he was considered a vulnerable person, and he was granted refugee status, which protected him from refoulement to Syria. Nonetheless, the court highlighted that this turn of events was neither guaranteed nor reasonably foreseeable when Germany removed the applicant to Greece without discharging their procedural obligation.

The ECtHR also found a violation of Article 3 for inadequate conditions of detention in Greece in Leros police station for a period of two months and seventeen days. The court noted that the respective police station lacked the amenities required for prolonged periods of detention.

Under Article 5(1), the court found that the applicant’s detention was justified as it had taken place pending expulsion and was needed for administrative formalities to be completed. However, the court found a violation of Article 5(4) for lack of an examination of the legality of his detention.

The case concerned a Christian from Pakistan, for whom a Fatwa has been issued against him. The applicant submitted a subsequent asylum application, and the Ministry had issued individual official report in order to assess this subsequent application. The issue at stake was the access of the applicant to classified information and the respect for his procedural rights in the procedure on asylum and interplay with the return procedure.

In the appeal, the Court of the Hague seated in Roermond referenced to the CJEU judgment of 22 September 2022 in the case GM v Országos Idegenrendeszeti Főigazgatóság, Alkotmányvédelmi Hivatal, Terrorelhárítási Központ (C-159/21) to state that the Dutch procedure  8:29 Awb is not compatible with EU law because the applicant’s defence rights were not fully guaranteed if the confidentiality or restriction of access to information is deemed justified. Furthermore, the Procedural Rules for Administrative Law Courts 2024 stipulate that the case is to be heard by an administrative judge other than the one who took the decision on return, while it follows from the recast APD that the judge who assesses the decision on the asylum application takes cognizance of all documents.

The court decided to submit questions submitted before the CJEU on whether the applicant must also be given access to data on the manner in which the Ministry of Foreign Affairs conducted the investigation in the country of origin and whether the court must have such data at its disposal on the basis of the recast APD.

The Court of the Hague seated in Roermond pointed out that throughout the entire procedure there is no (cognisable) assessment of whether the investigation conducted by the Ministry of Foreign Affairs has consequences for the risk of refoulement and that this is also not subject to judicial review. The Ministry of Foreign Affairs does not have the same expertise as the State Secretary to be able to assess the risk of refoulement. The assessment of the underlying unvarnished documents that takes place in the REK check* and in the confidentiality procedure laid down in Article 8:29 of the General Administrative Law Act do not relate to the assessment of the risk of refoulement.

The applicant may not be able to fully substantiate his application for international protection since he does not have access to the investigation report as provided under Article 23 (1) (b) of the recast APD. If the judicial authority that has jurisdiction in the main proceedings to rule on the lawfulness of the decision on international protection but it does not have access to the investigation report, then the question also arises on whether that judicial authority is fully able to guarantee the respect for the principle of non-refoulement and if it is fully able to offer an effective remedy and to carry out a full and ex nunc assessment of the risk of refoulement as required by the recast APD.

If the CJEU were to interpret Article 23 (1) of Directive 2013/32 as meaning that the underlying undisclosed documents cannot be regarded as the information in the applicant’s file on the basis of which the decision on his application for international protection was taken, the court will not derive access to those documents from that provision. The question then arises whether Article 5 of Directive 2008/115 requires the national court to take cognisance of those underlying undisclosed documents. In the main proceedings, the court must also review the lawfulness of the return decision and the obligation to respect the principle of non-refoulement when implementing Directive 2008/115, which also applies to the judicial authority and requires an independent assessment of all the relevant facts and circumstances. The prohibition of refoulement under the EU law is absolute and must be respected at all stages of the procedure, while an effective remedy is also required at the judicial stage.

The court of the Hague seated in Roermond considered that the 8:29 Awb procedure is not compatible with Directive 2013/32 and submitted two preliminary questions to the CJEU as follows:

1. Should Article 23(1) of Directive 2013/32, read in conjunction with Article 46(1) of Directive 2013/32, and having regard to Articles 4 and 47 of the EU Charter, be interpreted as meaning that the (access to the) information in the applicant’s file on the basis of which a decision has been or will be made also includes (access to) information on the manner in which that information was gathered and obtained?

2. Does Article 5 of Directive 2008/115, read in conjunction with Article 13(1) of Directive 2008/115, and having regard to Articles 4, 19(2) and 47 of the EU Charter, require the judicial authority reviewing the lawfulness of a return decision to ascertain how the information referred to in Article 23(1) of the recast APD was gathered and obtained?

The proceedings were suspended and the case is registered under C-431/24 [Multan].

* (REK check by the Research and Expertise Country and Language Team (TOELT), part of the Service Providers Directorate of the Immigration and Naturalization Service (IND).