The Administrative Court of Freiburg issued a decision in the case of a stateless Bedoon from Kuwait who filed an application for international protection in Germany in 2018. The German authorities rejected her application as inadmissible in 2019 as they found the application to be a “secondary application” as the applicant had previously been through an unsuccessful asylum procedure in Denmark. In 2019, the applicant brought an action against this decision, claiming that the Danish authorities had not examined her personal circumstances and wrongly assumed that she was not a Bedoon from Kuwait. The Administrative Court found that the German authorities were wrong in rejecting the applicant’s asylum application as inadmissible.
- Section 71a of the German Asylum Act (“AsylG”)
- Article 33(d) of the EU Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (Procedures Directive)
- Articles 13 and 15 of the EU Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Qualification Directive)
The applicant, a stateless Bedoon from Kuwait, entered Germany in March 2018 and applied for asylum. She had previously undergone an unsuccessful asylum procedure in Denmark resulting in the rejection of her application. The Danish authorities rejected her application based on doubts concerning the veracity of the information she had provided regarding her origin and found she did not meet the criteria for protection under the Danish Aliens Act. On 29 May 2019, the German Federal Office for Migration and Refugees (“BAMF”) rejected her asylum application as inadmissible, citing it as a “secondary application” under Section 71a of the German Asylum Act (“AsylG”). Considering the applicant’s vulnerability, the BAMF acknowledged a ban on deportation to Kuwait due to potential violations of Article 3 of the European Convention on Human Rights (“ECHR”). The applicant appealed this decision.
In her appeal, the applicant argued that the Danish authorities had reached an incorrect conclusion that she was not a Bedoon from Kuwait. She also asserted that the Danish decision was flawed due to an inadequate assessment of her individual circumstances. She highlighted changes in her personal situation that warranted a re-evaluation of her asylum application, namely her partnership and the birth of her two children after her departure from Denmark.
The BAMF maintained that the asylum application was inadmissible because it was a subsequent application following an unsuccessful asylum procedure in Denmark, a "safe third country", and therefore a "secondary application" within the meaning of Section 71a AsylG. The BAMF asserted that no new facts or evidence were presented by the applicant to justify re-opening her asylum case.
The Administrative Court of Freiburg annulled BAMF's rejection of the applicant's asylum application as inadmissible but did not compel the BAMF to grant her asylum or subsidiary protection. The court ruled that Denmark's rejection of the applicant's asylum application could not justify treating her German application as a “secondary application” under Section 71a AsylG.
With reference to the jurisprudence of the Court of Justice of the European Union (“CJEU”) (judgement of 20 May 2021 – case C-8/20) the Court emphasised that a "secondary application" requires the first asylum decision to come from an EU Member State fully adhering to the Qualification and Procedures Directives (EU Directives 2011/95/EU and 2013/32/EU), which set common standards for asylum. The court noted that Denmark is not bound by these Directives. Decisions in Denmark do not necessarily comply with the procedural and substantive guarantees of EU asylum law. For that reason, the asylum decision under Danish asylum law cannot be considered equivalent to a decision under the asylum law of the Federal Republic of Germany:
“Rec. 15: The legal basis for the contested decision is Section 29 (1) No. 5 in conjunction with Section 71a (1) AsylG. According to Section 29 (1) No. 5 AsylG, an asylum application is inadmissible if, among other things, a further asylum procedure is not to be carried out in the case of a secondary application in accordance with Section 71a AsylG. According to the wording of Section 71a AsylG, a second application exists if the foreigner submits an application for asylum in Germany after the unsuccessful conclusion of an asylum procedure in a safe third country (Section 26a AsylG) to which European Community legislation on the responsibility for asylum procedures applies or with which the Federal Republic of Germany has concluded an international treaty. These conditions are fulfilled in the case in dispute.
Rec.16: “However, the provision of Section 71a AsylG must be interpreted restrictively with regard to the requirements of Art. 33 para. 2 letter d of Directive 2013/32/EU (Procedures Directive). The CJEU has expressly left open whether this provision covers the concept of a cross-border secondary application at all (CJEU, judgement of 20 May 2021 - C-8/20 -, juris, para. 40; see - in the affirmative - Advocate General Saugmandsgaard Øe in his opinion of 18 March 2021, para. 49 et seq.) However, independently of this, he decided that Art. 33(2)(d) in conjunction with Art. Art. 2(q) Procedures Directive in any case precludes the rejection of an asylum application as an inadmissible secondary application within the meaning of Section 71a AsylG if the first asylum procedure was conducted in a third country - even if this country participates in the Dublin system of Regulation (EU) No. 604/2013 (ECJ, judgement of 20 May 2021 - C-8/20 -, juris, para. 49). It is true that the Court based its decision primarily on the consideration that Article 33 in conjunction with Article 2(q) and (b) of the Procedures Directive presupposed a decision by another "Member State" preceding the alleged subsequent application (ibid., para. 36 f.). However, it also made the equally important point that a "final decision" preceding the subsequent application pursuant to Art. 2(e) of the Procedures Directive only exists if this decision determines whether "refugee status or subsidiary protection status is to be granted in accordance with Directive 2011/95" (ibid., para. 38). Finally, it pointed out that "it cannot depend on an assessment of the specific level of protection for asylum seekers in the third country concerned" whether its decisions can be equated with those of a Member State, "since otherwise legal certainty would be impaired" (ibid., para. 47).
Rec. 17: It can be inferred from the latter two considerations that an asylum application can only be considered a subsequent application within the meaning of Article 33(d) of the Procedures Directive if the previous decision was taken by a Member State that is bound by the Qualification and Procedures Directives and is therefore a full member of the Common European Asylum System. This is because if this is not the case, no decision was taken in the first asylum procedure as to whether the applicant should be granted refugee status or subsidiary protection status in accordance with Directive 2011/95. Furthermore, in such a case, there is no normative certainty that the decision taken in the first Member State on the application for international protection was taken in compliance with the same procedural guarantees and according to the same substantive standards.”
The court also rejected the need to refer the case to the CJEU, as it found the interpretation of the relevant EU provisions clear.
The Administrative Court of Freiburg annulled BAMF's rejection of the applicant's asylum application as inadmissible but did not compel the BAMF to grant her asylum or subsidiary protection. The court ruled that Denmark's rejection of the applicant's asylum application could not justify treating her German application as a “secondary application” under Section 71a AsylG.
CJEU, L.R. v Bundesrepublik Deutschland, case C-8/20, judgment of 20 May 2021