BAMF rejected the application of a Somali national as inadmissible and a deportation order to Italy was issued, with a 30 days voluntary departure deadline, because the applicant was granted international protection in Italy. The Regional Administrative Court annulled the negative decision, considering that only for those granted refugee status in another Member State the application can be rejected as inadmissible, whereas the applicant was granted subsidiary protection in Italy. Further, the applicant did not appear on two dates for an interview with BAMF and the proceedings were terminated, and in the absence of arguments against the deportation to Italy, the BAMF decided on 8 August 2017 to deport the applicant to Italy since there were no systemic deficiencies.
By decision of 23 February 2021 of the Administrative Court of Giessen, the request to amend the decision of 8 August 2017 with regard to the transfer to Italy was rejected by the Federal Office, considering that beneficiaries of protection are entitled to medical acre in Italy and no evidence was submitted to demonstrate a prohibition of the deportation.
The applicant submitted by letter of 15 March 2021 an action for interim measures and suspensive effect of the action of 15 March 2021. The Administrative Court Giessen rejected the request and held that since the main application which is inadmissible became final and there is no other apparent legal basis against enforcement of the deportation, the action is unfounded.
The applicant further submitted a constitutional complaint on 12 April 2021, jointly with an interim junction, claiming that the Administrative Court of Giessen violated his right to effective legal protection as provided by article 19 (4) of the Basic Law (Constitution) because his urgent applications against the deportation were rejected as inadmissible without analysis on the merits.
The Federal Constitutional Court allowed the constitutional complaint and held that applicant has exhausted all legal remedies according to the national legislation and has sufficiently substantiated his constitutional claim. It stated that according to the Article 19 par. 4 of the Constitution the applicant has the right to effectiveness of legal protection and the Administrative Court should have not rejected the application as inadmissible or unfounded. The Federal Constitutional Court underlined that the constitutional guarantee of effective legal protection consists also of the interpretation and application on statutory provisions on urgent legal protection and ensuring that, even in urgent matters, legal protection is not limited to the mere possibility to bring a case before the court, but it can offer a judicial review prior to enforce a deportation order.
The decision of the Administrative Court of Giessen was thus annulled, and the case referred back for re-examination, with interim measures allowed.