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The applicants, Iraqi nationals, left their country of origin, Iraq, in 2015, travelled to Sweden where their application for international protection was rejected. The applicants lodged an application for asylum in Germany, and the Federal Office for Migration and Refugees (BAMF) requested the Swedish authorities to take them back after Sweden declared its responsibility for processing the asylum procedure on 27 September 2018.
They challenged the annulment decision rejecting their asylum application as inadmissible, their removal order to Sweden and entry ban and residence for three months from the removal date on 22 October 2018. An interim measures request was dismissed on 29 November 2018.
In January 2019, the German authorities tried to transfer the applicants to Sweden but they were not found and the transfer was extended for 18 months on the basis of Article 29 (2) of Dublin III Regulation, on the ground that the applicants were absconding. On 7 and 8 April 2020, BAMF suspended the transfer and postponed it due to the COVID-19 outbreak. On 22 June 2020, the suspension was revoked in light of the evolution of the COVID-19 situation, transfers to Sweden being resumed.
The applicants applied for interim measures before the Administrative Court. BAMF argued against by claiming that an administrative suspension of an immediate enforcement was possible as it was based on objective reasons and not arbitrary or abusive. BAMF also claimed that Member States have a 6 months time limit to deal with potential technical issues related to the implementation of a transfer. The Administrative Court allowed the applicants' appeal against the transfer order and suspended its effect. By a decision of 31 July 2020, the Administrative Court annulled the transfer decision on the ground that a transfer period of 18 months had expired at the time of the judicial decision. The initial 6-month period for the transfer was reopened for the last time by the urgent judicial decision of 29 November 2018 (on interim measures). It was assessed by the Administrative Court that BAMF suspension decision in relation to the COVID-19 outbreak is contrary to European law.
The Federal Administrative Court rejected BAMF's request for leave to appeal as it considered the case clear within the meaning of Article 78 (3) (1) of the AsylG as the legal question of law could easily be answered from the law or on the basis of existing case-law.
The Federal Administrative Court highlighted that the Dublin III Regulation provides for clear time limits, the expiry of which results in determining responsibility for the asylum procedure, for example in accordance with Articles 21 (1) (3), 25 (2), 28 (3) (2), 4 (29) (1), 2 (1) of the Dublin III Regulation. The expiry of those time-limits is also enough for a change of responsibility to take place. The Federal Administrative Court stated that it is irrelevant that there is a possible ‘fault’ or whether a risk falling within the responsibility of the requesting Member State materialises, for which time limits referred to could not be complied with.
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