Bundesverfassungsgericht

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Motion for a temporary injunction against a deportation under the Dublin II procedure successful

Press Release No. 103/2009 of 08 September 2009

Order of 8 September 2009
2 BvQ 56/09

The applicant is an Iraqi national. When he made an application for asylum to the Federal Office for Migration and Refugees, the Office found out that the applicant had already applied for asylum in Greece. The Office decided that the application for asylum was inadmissible and ordered the applicant's deportation to Greece, stating that Greece was obliged to take the applicant back under Council Regulation (EC) No 343/2003 of 18 February 2003, the so-called Dublin II Regulation. The Higher Administrative Court (Oberverwaltungsgericht) for the Land (state) North Rhine-Westphalia rejected a motion for a temporary injunction moved against the deportation because, according to the court, the Asylum Procedure Act (Asylverfahrensgesetz) precluded staying in preliminary injunction proceedings deportations to a European Union Member State responsible, pursuant to the Dublin II Regulation, for examining an asylum application. The court held that the exceptions from this ban which have been developed by the Federal Constitutional Court in its judgment of 14 May 1996 (BVerfGE 94, 49) on the asylum compromise (Article 16a.2 of the Basic Law (Grundgesetz - GG)) did not apply here. The constitutional complaint is directed against this order. At the same time, the applicant seeks his deportation to be stayed by the Federal Constitutional Court.

The First Chamber of the Second Senate of the Federal Constitutional Court has issued the temporary injunction, thereby provisionally suspending the applicant's deportation. The Chamber held that the constitutional complaint was neither manifestly inadmissible nor manifestly unfounded. It argued that the constitutional complaint gave rise to examining whether the guidelines which have been developed in the above-mentioned judgment on Article 16a.2 GG concerning the constitutionally required exceptions from the preclusion of temporary injunction proceedings against the deportation of asylum seekers to third countries responsible for examining the asylum application must be further specified. It further argued that the constitutional complaint gave rise to clarifying whether circumstances are possible in which the deportation of an asylum seeker to a European Union Member State may be suspended in temporary injunction proceedings, which is possible under European law pursuant to the Dublin II Regulation. In this context, the question may become relevant which consequences the principle of solidarity, which is enshrined in European law and which in the area of freedom, security and justice must be brought to bear on a common policy on asylum as well, has for the rights of the individual asylum seeker and for the interpretation of the Basic Law if there is a considerable overstrain on a Member State's asylum system.

The decisive factor for issuing the temporary injunction was that the applicant, relying on sources seriously to be considered, fears that it might at the moment not be possible for him to duly register in Greece. If the temporary injunction were not issued, this could mean that he could not be reached for the proceedings in the main action, so that a success in these proceedings would not help him any longer. The Federal Constitutional Court's order does not rule on the constitutionality of the Higher Regional Court's ruling or on the planned deportation.