The case concerned the appeal lodged by an Uzbek national against the BAMF decision of 19 July 2022 on a Dublin transfer of the applicant to Hungary. The Administrative Court of Minden annulled the contested decision. In fact, the applicant moved from Ukraine to Hungary when the war started in Ukraine and tried to apply for asylum there on 4 March 2022, but he was informed that only Ukrainians would be granted protection. The applicant was therefore granted a residence permit for one month, after which they had to leave the country, thus he continued to travel to Germany. Since he was threatened with arrest due to previous demonstrations if he returned to Uzbekistan or Kazakhstan, he was also unable to return to one of these countries. On 23 May 2022, the BAMF submitted a take charge request to the Hungarian authorities and the later agreed to the take charge and mentioned that the applicant entered Hungary in March 2022 but was not granted temporary residence permit and has not been registered as asylum seeker in Hungary nor granted temporary protection as displaced person from Ukraine.

By decision of 13 September 2022, the Administrative Court of Arnsberg allowed the request for suspensive effect of the appeal directed against the decision on the Dublin transfer. Due to legislative changes on competence, the case was transferred to administrative court of Minden.

The court noted that the applicant did not lodge an asylum application in Hungary and provided a brief comprehensive overview of the asylum system in Hungary, noting the CJEU judgment FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság, (C-924/19 and C-925/19, 14 May 2020), which criticised the access to asylum procedure and the new system with request before embassies in Serbia or Ukraine, including the exceptions which do not cover Dublin applicants. As such, the court found that applicants subject to a Dublin decision on transfer to Hungary are not excluded from the application of the so-called embassy procedure and it is unclear in practice how the procedure for applying for asylum will work in the event of a transfer and where those transferred can apply for asylum.

The court cited the EASO Asylum Report 2021 to state that although the NDGAP indicated the asylum procedure will be carried out in practice by Dublin applicants after they have declared their intention to maintain their asylum procedure upon arrival after transfer, however this information does not substantiate on the conduct of the procedure following transfer of Dublin applicants. As such, the court considered that it cannot be assumed that Hungarian authorities will comply with the European legal regulations.

The court referenced to CJEU judgments of 19 March 2019 Abubacarr Jawo v Bundesrepublik Deutschland, (C-163/17) and  Bashar Ibrahim (C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, Mohammad Ibrahim, Ahmad Ibrahim (C‑318/17), Nisreen Sharqawi, Yazan Fattayrji, Hosam Fattayrji v Bundesrepublik Deutschland, and Bundesrepublik Deutschland v Taus Magamadov when assessing conditions for Dublin transfers and risks under Article 4 of the EU Charter, which has an absolute nature. The court also mentioned the CJEU judgment N.S. (Afghanistan) and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (United Kingdom), (Joined cases C-411/10 and C-493/10, 21 December 2011) where the court stated that the presumption of such an infringement of Article 4 of the EU Charter presupposes that vulnerabilities relevant to asylum or other circumstances reach a particularly high threshold of relevance due to the special circumstances of the individual case.

The court stated that in case of transfer to Hungary, there is a considerable risk of treatment contrary to European asylum standards and a risk of being subject to inhuman and degrading within the meaning of the case law of the CJEU due to systemic deficiencies in the asylum procedure. The court found that asylum seekers who have not yet applied for asylum in Hungary will probably not be granted access to the asylum procedure in Hungary. On the contrary, there is a considerable risk of deportation to their country of origin without a prior decision on their asylum application, contrary to the principle of non-refoulement enshrined in Article 33 paragraph 1 of the Geneva Convention and Article 3 of the European Convention on Human Rights.

Therefore, the court concluded that Hungary is not responsible for carrying out the asylum­ procedure in the present case and overturned the decision on the Dublin transfer, considering that it cannot be implemented.