The State Secretary decided not to process the application of an Afghan national and deemed that Germany is the state responsible, according to the Dublin III Regulation. The applicant contested the decision and alleged that if transferred to Germany eh risks being returned to Afghanistan and would not have the possibility to complain about in before the German authorities. The applicant also complained, based on various country reports, including AIDA report, that in Germany applicants have no right to funded legal aid when the application is being processed at first instance and that in appeals, legal aid is being provided only if a ‘merits test’ is passed. The applicant complained thus that Germany did not respect the right to fair trial and effective remedy.

The Court of the Hague dismissed the appeal of the applicant and reiterated the provisions of the APD on legal assistance and representation, to conclude that Germany was not breaching EU law concerning provision of legal assistance and representation. Precisely, the fact that in Germany free legal aid can only be provided for the appeal procedure and is subject to a merits test, is in accordance with Articles 19, 20 and 21 of the recast APD. In addition, the APD provides that Member States may offer free legal aid and/or representation in the asylum procedure at first instance, but there is no such obligation. 

On the risk of indirect refoulement, the Court noted that German authorities provided guarantees to consider the application for international protection and that the applicant has the possibility to complain about a potential risk of refoulement and/or violation of international obligations before German courts and eventually even before the ECtHR.