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05/09/2022
DE: The Regional Administrative Court overturned a transfer to Poland for insufficient investigations on whether minor applicants’ risk being detained in unsuitable conditions, contrary to the Article 4 EU Charter

ECLI
Input Provided By
EUAA IDS
Source
Asyl.net
Other Source/Information:
Referral to the CJEU
No
Original Documents
Type
Judgment
Relevant Legislative Provisions
Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP);
Reference
Germany, Regional Administrative Court [Verwaltungsgerichte], Applicant v BAMF, 12 L 599/22.A, 05 September 2022. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=2919
Case history
Related cases:
Abstract

The case concerned a Dublin transfer of a group of applicants to Poland. The Regional Administrative Court considered that the transfer can not take place due to the unclarities on whether, in the event of the transfer and in view of the systemic deficiencies in the reception system, there is a significant risk that the applicants would be subject to inhuman or degrading treatment within the meaning of Article 4 EU Charter.

The court underlined that Poland is detaining children asylum seekers and not only adults, for various reasons such as for example identity verification, risk of absconding, security reasons. The court noted that NGO reports mention that detention conditions are not adequate for children and stated that the determining authority has to determine, based on this information and context, whether amongst the transferred applicants there are minor children who would be detained and under which conditions in the detention centers.

NGOs reported that in 2021, a number of 567 children were detained, 486  were accompanied by their parents and 81 were unaccompanied minors. The length of stay in a detention center was between 52 days and 5 months. NGOs reported that the detention of children is ordered automatically, without an individual assessment of the circumstances and the needs of the children, without hearing in court and without any medical and psychological examinations.

The court also noted that in January 2022, the Commissioner for Human Rights expressed his concerns in a letter sent to the Presidents of the Regional Courts (Prezesów Sądów Okręgowych) about the detention of asylum applicants which are families with children. The Commissioner stressed that none of the detention centers is a suitable place for children and that detention can have a negative and irreversible effect on a child's development and psycho-physical state, especially in cases of a traumatic migration experience. 

The court referred the case back to BAMF for further investigations since it was unclear from the available evidence whether asylum seekers and minor asylum applicants who are transferred to Poland under the Dublin procedure are also threatened with detention under the detention conditions described above. 

Country of Decision
Germany
Court Name
DE: Regional Administrative Court [Verwaltungsgerichte]
Case Number
12 L 599/22.A
Date of Decision
05/09/2022
Country of Origin
Unknown
Keywords
Assessment of Application
Dublin procedure
Torture or inhuman or degrading treatment or punishment