The case concerned a judgement of the Higher Administrative Court of North Rhine-Westphalia, which had decided that the applicant, who was subject to a transfer decision to Italy under the Dublin III Regulation, would risk a violation of his rights under Article 4 of the EU Charter due to reception conditions in Italy. The court did not allow the leave to appeal. The BAMF lodged a complaint against the denial of leave to appeal before the Federal Administrative Court on the grounds of a procedural defect, the fundamental importance of the case and divergence.

Regarding a procedural defect, the Federal Administrative Court held that the Higher Administrative Court of North Rhine-Westphalia had not violated the principle of free evaluation of evidence within the meaning of Section 108(1) sentence 1 of the Administrative Court Code by stating that the accommodation provided by churches, non-governmental organisations and private individuals was no substitute for the lack of accommodation provided by the state. The court found that, contrary to the BAMF's assertion, the Higher Administrative Court of North Rhine-Westphalia had not failed to undertake sufficient fact-finding on the number and accessibility of accommodation provided by non-governmental organisations or other significant factual information.

The Federal Administrative Court then decided that the Higher Administrative Court of North Rhine-Westphalia had not failed to sufficiently deal with the case law of the Higher Administrative Court of Baden-Württemberg (Applicant v Federal Office for Migration and Refugees (BAMF), No A 4 S 749/19, 29 July 2019 and Applicant v Federal Office for Migration and Refugees (BAMF), No A 4 S 2850/21, 08 November 2021). In this regard, the Federal Administrative Court stated that a failure to examine contrary case law from other higher administrative courts in the context of recognising the situation in the country of origin was basically a substantive legal matter and could therefore only constitute a procedural defect, if a party based its submissions on such a decision. However, the Federal Administrative Court held that the Higher Administrative Court of North Rhine-Westphalia had sufficiently dealt with the relevant case law in the application for leave to appeal and that a mere referral to these considerations in the contested judgement was sufficient.

Thirdly, the Federal Administrative Court ruled that the Higher Administrative Court of North Rhine-Westphalia had not violated the duty to consider evidence pursuant to Section 108(1) sentence 2 of the Administrative Court Code by deciding that it was highly unlikely that the applicant would be able to provide himself with the minimum subsistence level from employment in the event of his return to Italy. The Federal Administrative Court referred to the required high threshold for the determination of systemic deficiencies and held that the basic need of accommodation could already be met if an applicant had a place to sleep in an emergency shelter provided by churches, NGO’s or private individuals or in an "informal settlement" tolerated by the state, if they provided at least temporary protection from weather conditions and leave room for the most basic needs. However, the Federal Administrative Court considered that there was no relevance to the decision in the matter because the appeal decision was based not only on the ground of reception conditions, but on several independent grounds which all had to be contested for the admissibility of a revision on the points of law.

Fourthly, the Federal Administrative Court ruled that the Higher Administrative Court of North Rhine-Westphalia did not commit a procedural error by not addressing the possibility that the applicants could take up prohibited undeclared work in Italy to secure their minimum subsistence level. The Federal Administrative Court held that, when assessing the existence of a procedural defect, the material law position of the lower court had to be taken into account, even if this was incorrect. The Higher Administrative Court of North Rhine-Westphalia had assumed that a reference to illegal undeclared work was inadmissible and disrespected the EU’s and Italy’s efforts against undeclared work. From this material point of view, there was therefore no reason for the Higher Administrative Court of North Rhine-Westphalia to analyse in depth the possibility of taking up undeclared work to secure a minimum subsistence level.

Based on the above, the Federal Administrative Court decided that the Higher Administrative Court of North Rhine-Westphalia had not violated the principle of the free evaluation of evidence or the duty to consider evidence and therefore there was no procedural defect.

The Federal Administrative Court further decided that the appeal was also not admissible due to the ground of fundamental importance of the case pursuant to Section 132(2) No 1 of the Administrative Court Code. As regards the question raised by the BAMF of "whether, taking into account the principles of CJEU, Bashar Ibrahim et.al. v Bundesrepublik Deutschland, Joined Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17, 19 March 2019 and Abubacarr Jawo v Bundesrepublik Deutschland, C‑163/17, ECLI:EU:C:2019:218, 19 March 2019 it had to be considered that all applicants returning to Italy, regardless of their particular vulnerability, face such disadvantages that this may constitute a violation of Article 4 of the EU Charter and Article 3 of the ECHR", the Federal Administrative Court ruled that this question was based on material questions that were not open to revision.

On the question of whether foreigners who have been granted international protection in a Member State of the EU can reasonably be expected to pursue employment in undeclared work in order to avoid a situation that is incompatible with Article 4 of the EU Charter and Article 3 of the ECHR, the Federal Administrative Court acknowledged that this was a question based on legal points and could therefore be clarified in the revision procedure. However, the court referred to its prior case law where it had already determined that the economic subsistence level could also be secured through work in the so-called "shadow or niche economy". The court also held that it was not necessary to further clarify the detailed standards for the admissibility of a referral to undeclared work, as the impending violation of Article 4 of the EU Charter and Article 3 of the ECHR already followed from the reception conditions so that the question of access to undeclared work was not relevant to the decision.

Ultimately, the Federal Administrative Court rejected the BAMF’s objection on the grounds of divergence. The BAMF had argued that the Higher Administrative Court had deviated from superior courts case law, as it had not applied the "hard standard" of the particularly high threshold of severity to assess the existence of systemic weaknesses but had applied "soft standards" in this respect. The Federal Administrative Court decided that this vague description constituted a mere error in the application of the law and was not subject to the ground of divergence.

Based on the above, the Federal Administrative Court dismissed the BAMF’s complaint against the decision of the Higher Administrative Court of North Rhine-Westphalia of 3 December 2021 not to grant leave to revision.