In February 2020, I pointed out the possibility that the Federal Office for Migration and Refugees (BAMF) could try to use the option granted to it by the Federal Administrative Court (BVerwG) to limit the transfer deadline in the Dublin procedure by issuing suspension orders Section 80 (4) VwGO to interrupt, to use to make up for deportations that could not take place because of the “lockdown” after its termination. In fact, it turned out a few weeks later that the BAMF had actually decided in favor of this approach in very many cases. Whether and in which cases this is permissible, opinions in case law differ widely. There are currently several revision proceedings on this question at the BVerwG. Here I put one decision before, in which the Administrative Court (VG) Gelsenkirchen considers this procedure to be inadmissible.
A special feature of the procedure deserves attention beforehand: It is again an application in the procedure after Section 123 VwGO, who was sued here and there, but no application for interim legal protection according to Section 80 (5) VwGO has been made is permissible. I had already written in more detail on this subject in connection with this decision by the VG Aachen. The VG Gelsenkirchen shares the opinion of the VG Aachen on this topic:
In the present case, an application for a preliminary injunction is exceptionally possible despite the in Section 34a (2) sentence 1 AsylG provided weekly period and the in Section 123 (5) VwGO regulated priority of the procedures Section 80 (5) and (7) VwGO before the procedure after Section 123 (1) VwGO permissible to constitutionally (Art. 19 Abs. 4 Basic Law) guarantee the applicant’s guaranteed right to effective legal protection. With a view to the application deadline of the § 34a Abs. 2 AsylG captures the priority of an application for an order of the suspensive effect of the action against the deportation order Section 80 (5) VwGO namely only circumstances that could be asserted within this period. This does not include the expiry of the transfer period claimed by the applicant. This is only well after the deadline of § 34a Abs. 2 AsylG occurred. In order not to deny the asylum seeker effective legal protection against the immediate enforcement of the deportation order that may have become illegal in such a situation, he must address the question of the expiry of the transfer period by means of an application for a temporary order Section 123 (1) VwGO can object to execution. Otherwise one would arise with Art. 19 Abs. 4 GG and Art. 27 Dublin III Regulation incompatible legal protection gap.
On the question of whether the BAMF’s suspension orders are lawful, the court stated:
In principle, the Federal Office is entitled in accordance with Section 80 (4) VwGO suspend the immediate execution of the deportation order, which according to Art. 27 Para. 4 Dublin III Regulation can result in an interruption of the transfer period. According to national law for the Federal Office Section 80 (4) sentence 1 VwGO However, the wide scope for action that has been opened up is limited by Union law provisions, in particular through the objective pursued by the Dublin III Regulation of an appropriate balance between, on the one hand, granting effective legal protection and the rapid determination of the Member State responsible for examining the content of the asylum application and, on the other, the aim to prevent asylum seekers from moving on to choose the Member State responsible for examining their asylum application. According to this, an official suspension decision may also be issued under Union law if there are doubts about the legality of the deportation order. The effectiveness of judicial protection allows an official suspension for objectively justifiable considerations that do not have to be legally mandatory, even below this threshold, if they do not arbitrarily misjudge the idea of speeding up and the interests of the responsible Member State and are not otherwise abusive. […]
According to these criteria, the suspension of enforcement by the Federal Office for reasons of European law is illegal. It did not serve to enable the person concerned to await the outcome of the judicial proceedings in Germany. This is made clear by the fact that the suspension of execution did not take place until the judicial proceedings were concluded, but only until further notice and subject to revocation at any time and was revoked before the judicial proceedings were concluded. Rather, the suspension took into account the fact that, for factual reasons for which neither of the parties involved was responsible, a transfer had become unlikely by the end of the six-month transfer period. In such a case, however, European law does not provide for an extension of the deadline, and neither the option of suspension under Union law nor the option of suspension under national law is intended to bring about an extension of the transfer period in such a constellation. Nevertheless, assuming an interruption of the current transfer period due to the suspension of enforcement by the Federal Office could result in a pending situation of an unforeseeable duration for the applicant, which would contradict the aim of the Dublin III Regulation to enable the responsible Member State to be determined quickly to ensure effective access to the procedures for granting international protection and not to jeopardize the speedy processing of applications for international protection.
To justify the application, I have the recommended one, among other things Sample brief from Pro asylum and Escape point Hamburg used to answer this question. This is also helpful Case law overviewthat the Asylum & Migration information network has compiled.
VG Gelsenkirchen, decision of 05.11.2020, 19a L 1329 / 20.A
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