According to ELENA Weekly Legal Update,
The applicant, a Syrian national, was subjected to a border police entry check while traveling by train from Austria to Germany on 2 October 2018. The applicant stated that he had spent two months in Greece and had travelled to Germany to join his sister and request asylum. A EURODAC search revealed that he had applied for asylum in Greece in April 2018. On the same day, the Federal Police sent a notification to Greek authorities, who agreed to the repatriation. The attempt to return the applicant on a flight from Munich to Athens on 2 October 2018 failed and the applicant was detained until 6 October 2018, on which date he was returned.
The applicant submits that when he returned to Greece he was accommodated in a camp, did not receive any state financial support, and had limited access to medical care. The applicant further submits that he has severe mental health issues, as a result of which he was temporarily admitted to a psychiatric institution in Greece. With reference to the recent report by the Committee for the Prevention of Torture and Inhuman or Degrading and Degrading Treatment or Punishment (CPT) on Greece, the applicant submitted that the psychiatric facilities in Greece were inadequate and amounted to inhuman and degrading treatment. The applicant also claimed dependency on his sister in Germany within the meaning of Article 16 of the Dublin III Regulation 604/2013.
In its assessment of the case, the Bavarian Administrative Court of Munich refused to grant interim measures under § 123 (1) of the Administrative Court Rules (VwGO) to transfer the applicant back to Germany from Greece. The Court held that interim measures presuppose both a need to claim provisional legal protection on the grounds of urgency and a claim for an injunction, i.e. the sufficient prospect of success or at least of partial success of the asserted claim in main action proceedings. It found that such an assumption could not be made in the instant case as the main claim is inadmissible, and therefore the Court refused to grant interim measures.
The Court held that, in any case, the applicant’s asylum case would not be heard in Germany, but in Greece as required under the Dublin III Regulation 604/2013. Thus, there were no main action proceedings to be heard in the instant case. It also found that in this situation Article 29 (3) of the Regulation, under which a person erroneously transferred can be brought back, did not apply because the applicant was not transferred in error but to his current place of residence in Greece. It also found that the family reunification component to the applicant’s sister was not permissible as siblings are not included in the definition of Article 2(g) of the Regulation.
With reference to Article 13 (1) of Regulation 604/2013, the Court held that Greece was responsible for the asylum application. The Court recognized that transfers to Greece had been reinitiated since 2016, as recommended by the European Commission Communication of 8 December 2016, and it stated that the prospects for the asylum system in Greece had improved. The Court held that the applicant would not specifically and individually be affected by systemic weaknesses in Greece. It stated that his conditions in Greece did not amount to inhuman or degrading treatment and that he was able to keep in touch with his sister. The Court held that the decision was not unlawful and ruled against the provisional return of the applicant to Germany.
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