The case concerned several family members of Iraqi nationality who applied for asylum in Germany on 21 August 2022. After formal conduction of a Dublin procedure which resulted in Croatia’s responsibility under the Dublin-III Regulation, the BAMF rejected the asylum applications as inadmissible and ordered the transfer to Croatia by decision of 26 September 2022. On 11 October 2022, the applicants appealed against this decision before the Regional Administrative Court and also applied for the suspensive effect of the action on grounds that the asylum system in Croatia had systemic weaknesses because of the occurrence of violent push-packs and illegal chain deportations. The Regional Administrative Court ordered suspensive effect by decision of 7 November 2022 and overturned the BAMF decision by judgement of 8 May 2023. The BAMF lodged an onward appeal against before the Higher Administrative Court of Lower Saxony, which was declared admissible by a decision of 6 July 2023.

The Higher Administrative Court of Lower Saxony referred to the decision of the Federal Administrative Court, BAMF v Applicant 2, No 1 B 21/22, 7 March 2022 and the CJEU judgment, 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, 19 March 2019 and reiterated the principle of mutual trust in the CEAS, based on which there are particularly high requirements to be applied to the question of whether sufficient protection exists in another Member State.

Based on this, the Higher Administrative Court of Lower Saxony referred to the judgement of the Higher Administrative Court of Baden-Württemberg, Applicants v Federal Office for Migration and Asylum (BAMF), No A 4 S 2666/22, 11 May 2023, and held that even though country information on the situation in Croatia showed that there were repeated pushbacks from Croatia to Serbia or Bosnia-Herzegovina and illegal chain deportations occurred (including according to the latest findings), there was no sufficient evidence that chain deportations or other violations of rights under Article 4 of the EU Charter and Article 3 ECHR occurred also in the case of asylum applicants subject to the Dublin procedure. The court found that the country information on the situation in Croatia only presented the situation of those persons who had not yet applied for asylum. Such situation could not be compared to the situation of Dublin applicants, who were already registered as asylum seekers and for whom Croatia had expressly agreed to conduct an asylum procedure.

Furthermore, the Higher Administrative Court of Lower Saxony held that there is a constitutional asylum procedure available in Croatia, including the possibility of a judicial appeal. As such, the court considered that Dublin applicants had full access to the Croatian asylum system, the health care system and that the reception conditions were also appropriate. The court decided that the mere fact that two of the applicants were minors did not preclude the transfer to Croatia because basic care was also sufficiently provided to families with minor children.

Based on the above, the Higher Administrative Court of Lower Saxony overturned the lower court decision and held that Germany was not responsible pursuant to Article 3(2) sentence 2 and 3 of the Dublin-III Regulation because there were no sufficient grounds to find a risk of inhuman or degrading treatment pursuant to Article 4 of the EU Charter and Article 3 ECHR upon a Dublin transfer to Croatia.