The case concerned an applicant of unknown nationality who applied to the Administrative Court of Dresden for an interim measure pursuant to Section 80(7) sentence 2 of the Administrative Court Code against a Dublin transfer to Sweden on grounds that the extension of the transfer deadline carried out by the BAMF was unlawful and that the deadline had therefore expired.

Prior to this, the applicant had applied for an interim measure pursuant to Section 80(5) of the Administrative Court Code against the transfer decision, which was rejected by the BAMF by decision of 19 May 2023. As a consequence, the BAMF set the Dublin-transfer deadline to Sweden pursuant to Article 29(1), (2) of the Dublin III Regulation for 19 November 2023 and notified the Swedish authorities about this deadline. Between 19 September 2023 to 5 October 2023, the applicant was neither recorded in the electronic registration system of the reception centre nor found during visual controls and the applicant was notified of this. On 26 September 2023, the BAMF declared the applicant as absconding pursuant to Article 29(2) of the Dublin III Regulation and informed the Swedish authorities that the transfer deadline was prolonged until 19 November 2024.

By submission of 24 November 2023, the applicant applied for an interim measure pursuant to Section 80(7) of the Administrative Court Code on ground of not having been absconding and handed in medical certificates from 19 September 2023.

The Regional Administrative Court of Dresden decided that pursuant to Section 80(7) sentence 1 of the Administrative Court Code, a court may amend or revoke interim decisions at any time, in particular due to changed circumstances. The court noted that such a change of circumstances occurred, if the six-month transfer period had expired and an extension of the transfer period pursuant to Article 29(2) sentence 2 Dublin III Regulation was unlawful.

The Regional Administrative Court of Dresden further held that absconding pursuant to Article 29(2) sentence 2 of the Dublin III Regulation required more than just a temporary, brief absence. The court noted that as long as an applicant, who was subject to a transfer decision, actually had their center of life in their home or accommodation and was only occasionally absent for a short time, they were not obliged to notify the immigration authority of this. The court considered that this applied even if the applicant's presence could not be established via the electronic registration system, through visual checks or when collecting pocket money.

Based on the above, the Regional Administrative Court of Dresden decided that the applicant had not been absconding, ordered the annulment of the previous interim decision and granted the suspensive effect of the action.