The Federal Administrative Court ruled that third-country nationals, who have been granted international or subsidiary protection in another Member State, but who cannot be returned due to a risk of inhuman or degrading treatment, may be threatened with removal to their country of origin if their asylum application in Germany has been rejected. 

The cases concerned Iraqi nationals who have been granted international or subsidiary protection in Greece and then subsequently sought protection in Germany, where their applications have been rejected by the Federal Office for Migration and Asylum (BAMF) and have been threatened with deportation to their country of origin Iraq.

Upon appeals, the lower Administrative Courts had ruled differently: whereas the Administrative Court of Stuttgart held that the Greek decision granting international protection to the applicant had a limited binding effect on the threat of deportation and revoked it (case no. VG A14 K 1866/23, decision no. 1 C 24.25), the Administrative Court of Cologne dismissed the applicant’s appeal (case no. VG 27 K 6361/20.A, decision no. 1 C 16.25).

In appeals on points of law, the Federal Administrative Court upheld the BAMF request against the ruling of the Administrative Court of Stuttgart and rejected the appeal of the applicant against the judgment of the Administrative Court of Cologne.

The Federal Administrative Court ruled that the prohibition of deportation provided by Section 60(1) sentence 2 paragraph 3 of the Residence Act is based on the assumption that the other Member State granted protection to the refugee. However, if exceptionally this protection cannot be assumed, it would result into an impediment on applying Section 60(1) sentence 2 paragraph 3 with regard to a positive decision adopted by another Member State which does not fulfil its obligations derived from the granting of protection when Germany must decide on the substance of a new application for international protection. According to the court, Section 60(1) sentence 2 paragraph 3 of the Residence Act must be interpreted theologically in the sense that, in a situation as the one in the present case, the principle of non-refoulement does not preclude a threat of deportation of the applicant to his or her country of origin.

The Federal Administrative Court affirmed that the interpretation of this provision is compatible also with the EU law. It referenced the CJEU judgment in QY v Bundesrepublik Deutschland (C-753/22, 18 June 2024) to reiterate that, in cases in which another Member State has granted international protection to an applicant, and Germany cannot reject the new application for protection as inadmissible due to a risk of exposing the applicant to serious harm in that country due to the living conditions there and to inhuman or degrading treatment contrary to Article 4 of the EU Charter of Fundamental Rights (EU Charter), Germany can reject the application for international protection provided that it is based on a new individual assessment and by taking into account the decision adopted by the other Member State and the evidence supporting that decision. It clarified that such a situation cannot be precluded by prohibiting the rejection of a threat of deportation of a third country national to their country of origin, pursuant to Article 21(1) and, where applicable, jointly with Article 20(2) of the recast Qualification Directive.