An Afghan national entered Greece in February 2024, and was granted international protection. In May 2024, he entered Germany and requested international protection. On 29 August 2024, the Federal Office for Migration and Refugees (BAMF) rejected his application as inadmissible, with a threat of returning him to Greece. On 6 September 2024, the applicant appealed this decision before the Berlin Administrative Court and filed a request for interim relief, which the court rejected on 20 September 2024. The court found that the applicant would not face a risk of inhuman or degrading treatment upon return to Greece. It held that, upon return to Greece, beneficiaries of international protection could, at least temporarily, secure their subsistence through reasonable means, including gainful employment in the so-called "shadow economy," which constitutes a significant part of the Greek economy, for as long as it does not expose to applicant to a significant risk of legal repercussions. On 23 October 2024, the applicant appealed this decision before the Federal Constitutional Court. He argued that the Berlin Administrative Court denied him effective legal protection and failed to properly assess his risk of impoverishment in Greece, where he would likely face homelessness, lack of access to legal employment, and no realistic access to social benefits.

The Federal Constitutional Court found the appeal inadmissible, as it did not conclusively demonstrate a violation of the constitutional requirements of the principle of effective legal protection.

The Federal Constitutional Court, citing the ECtHR judgment in M.S.S. v. Belgium and Greece (30696/09, 21 January 2011), reiterated that returning a refugee to another Contracting State may breach Article 3 of the ECHR if the authorities know or should know that the person would face inhuman or degrading conditions, such as prolonged homelessness without access to food or sanitation. The Federal Constitutional Court also held that courts and authorities must base their assessments of reception conditions in the receiving State on thorough, reliable, and sufficiently comprehensive evidence before approving a return decision, and referenced the ECtHR judgment in Tarakhel v Switzerland (29217/12, 4 November 2014). he Federal Constitutional Court added that, when sufficient findings and assurances are not available for the authorities, then the court can order a suspensive effect of the action in order to ensure legal protection.

The court held that, in this case, the Administrative Court properly conducted the examination of whether the applicant would face living conditions amounting to a violation of Article 3 of the ECHR upon return to Greece.

The court dismissed the applicant's claim that national and European case law is unclear concerning the extent to which individuals can be required to perform undeclared work in compliance with Article 3 of the ECHR. Specifically, the court highlighted that the Federal Administrative Court had already ruled on the matter in Applicants v Federal Office for Migration and Refugees (1 C 23.23 and 1 C 24.23, 21 November 2024). In that decision, made in the context of a revision of facts concerning the situation of persons granted international protection in Italy, the the Federal Administrative Court held that activities in the so-called “shadow or niche economy” may reasonably be expected of beneficiaries of international protection to secure their livelihood, provided they are not exposed to a serious risk of criminal prosecution. The Federal Constitutional Court clarified that, although these statements were made in the context of a fact-specific review related to Italy and were not strictly binding beyond those facts, they represented the court's ongoing legal interpretation according to which undeclared work can be reasonable for beneficiaries of international protection. Thus, it dismissed the applicant's claim that this issue was unclear or unlawfully decided as unfounded.

The court further stated that, also in view of the aforementioned decision, accommodation in temporary shelters constitutes a reasonable alternative for beneficiaries of international protection. Therefore, it dismissed the applicant's claim of a violation of Article 3 of the ECHR and Article 4 of the EU Charter, which was based on allegations of risk of homelessness resulting from bureaucratic obstacles and lack of support programs effectively barring access to the formal housing market.