The case concerned a Gambian national who applied for international protection in Germany in 2014. In 2015, the BAMF rejected the application as inadmissible and ordered the transfer to Italy based on the Dublin III Regulation. The applicant appealed against this decision before the Regional Administrative Court of Karlsruhe, claiming that he faced inhuman and degrading treatment due to systemic deficiencies upon transfer to Italy. The court did not grant suspensive effect to the appeal after which an attempt to transfer the applicant to Italy in 2015 failed because he was not present in his reception facility.

Upon return to the reception facilities, the applicant notified the social welfare office in Heidelberg of his return. The BAMF, which was not notified of the applicant’s return, notified the Italian authorities of the prolongation of the transfer deadline until 2016 on the ground that the applicant was “absconding”. In 2016, two further attempts to transfer the applicant failed.

By judgment of 6 June 2016, the Regional Administrative Court of Karlsruhe rejected an appeal in which the applicant had claimed that the transfer deadline had expired. By decision of 8 November 2016, the Higher Administrative Court of Baden-Württemberg allowed the leave to appeal against the judgment of the Regional Administrative Court of Karlsruhe and granted suspensive effect of the appeal. By decision of 15 March 2017, the Higher Administrative Court of Baden-Württemberg lodged a preliminary request to the CJEU, which decided in Abubacarr Jawo v Bundesrepublik Deutschland (C‑163/17, 19 March 2019).

In the follow-up procedure, the applicant continued to claim a risk of a violation of Article 3 ECHR and Article 4 of the EU-Charter upon return to Italy and stated that following the findings of the CJEU, the applicant was not “absconding”, which could be seen by the fact that he willingly informed the social welfare office of Heidelberg of his return to the reception centre. The applicant added that in any case the BAMF was obliged to reduce the 18 months transfer deadline to 6 months transfer deadline after his voluntary return and notification to the authorities.

Following up on the preliminary ruling of the CJEU (Jawo), the Higher Administrative Court of Baden-Württemberg reiterated the clarified standard of the CJEU in cases of Dublin transfers, after which a violation of Article 4 of the EU Charter applied only in a situation of extreme material hardship for a prolonged period of time, not allowing for the most basic needs to be met, in particular finding shelter, food and washing (lack of "bed, bread, soap"). Based on this "hard standard" of the CJEU, the Higher Administrative Court of Baden-Württemberg held that the applicant, as a healthy person capable of working, was not exposed to a "real risk" of inhuman or degrading treatment pursuant to Article 4 of the EU-Charter due to systemic weaknesses in Italy.

As regards the expiration of the transfer deadline, the Higher Administrative Court of Baden-Württemberg referred to the standard set out in the Jawo judgment, after which “absconding” presupposes that the applicant is objectively unavailable for a certain period of time and has the subjective intention to evade. The court clarified in this context that according to this standard, asylum seekers were not absconding if they were staying in “open” church asylum in the course of which the authorities are informed of the address. However, in the case of the applicant, the court decided that the applicant intentionally absconded.

As regards the fact that the applicant had notified the welfare office of Heidelberg of his return, the  Higher Administrative Court of Baden-Württemberg held that given that he had received the instruction to notify the BAMF immediately of any change of address, he was obliged to contact the BAMF of his return. In this case, the report of the return to another authority could not count as a benefit to the applicant. Consequently, the court decided that the applicant had been “absconding” during the first transfer attempt in 2015, so that the BAMF had lawfully prolonged the transfer deadline to 18 months pursuant to Article 29(2) of the Dublin III Regulation.

The court also held that the transfer deadline had not expired in the meantime, because he had been granted suspensive effect by the Regional Administrative Court of Karlsruhe on 18 February 2016 which interrupted the extended transfer period. Furthermore, considering the effet-utile in EU law, the court held that a suspension of procedures for preliminary requests to the CJEU automatically interrupted the expiry of the transfer period in the Dublin procedure.

Finally, as regards the applicant’s statement that the transfer period of 18 months should have been reduced to 6 months, the court held that the Dublin III Regulation did not foresee any entitlement to return to the shorter time limit upon return if originally the transfer period was extended lawfully to 18 months.

Based on the above, the Higher Administrative Court of Baden-Württemberg rejected the onward appeal and held that the transfer decision to Italy was lawful.