The applicant entered the territory of the European Union from Ukraine through Hungary on 2 March 2022. He did not file an application for asylum in Hungary, and proceeded to enter the German territory, where he applied for asylum on 6 April 2022. His application was rejected by the BAMF on 23 May 2022; the BAMF, who identified Hungary as the State responsible for the applicant’s asylum procedure, sent a request to take charge to Hungary on the same day. In a letter dated 24 May 2022 and received by the BAMF on 7 July 2022, Hungary accepted the request to take charge.

On 24 May 2022 however, the applicant contested the BAMF’s decision; he argued that his entry on Hungarian territory was legal because Hungary had previously declared that it had granted access to its territory for those fleeing the war in Ukraine.
On 19 July 2022, the BAMF ordered the applicant’s Dublin transfer to Hungary noting that the applicant, as a ‘person with a recognised protection status’, would enjoy the same social rights as Hungarian nationals. Subsequently, the applicant requested the adoption of interim measures suspending the order of transfer to Hungary.

The court ordered the suspension of the decision to transfer the applicant to Hungary.
The court stated that the applicant’s entry into Hungarian territory could not be considered legal, in which case he would have obtained a residence permit. It added that, in light of the Dublin III Regulation, the BAMF’s preliminary assessment of Hungary’s responsibility in this case was correct. However, the court also argued that, despite Hungary’s acceptance of the transfer, the BAMF’s decision would likely be declared unlawful in the main proceedings; indeed, the court highlighted serious reasons to assume the presence of systemic flaws in the Hungarian asylum procedure, which could amount to inhuman and degrading treatment and/or violations of the principle of non-refoulement.
The court noted that, since the applicant had not applied for asylum when he first arrived in Hungary, he would not be able to do so after his Dublin transfer either; instead, the applicant would first have to submit a “statement of intent for the purpose of lodging an asylum application” at the Hungarian embassy in Germany and wait for it to be approved before travelling to Hungary and submit his formal application for asylum there. Thus, the Dublin transfer ordered by the BAMF would put him at risk of refoulement. The court added that, contrary to the BAMF’s argument, the applicant’s minimum subsistence until his deportation to his country of origin would be insufficient because he did not have a recognised protection status and therefore could not enjoy social benefits nor State aid.
Finally, the court asserted that the assumptions of systemic flaws in the Hungarian asylum procedure could not be overturned: notwithstanding the German authorities’ request, the Hungarian authorities did not provide written guarantees that Dublin transfer applicants would be dealt with in line with the recast Asylum Procedures Directive and the Council directive adapting certain directives in the field of transport policy.