Federal Constitutional Court - Press office -

Press release no. 103/2009 of 8 September 2009

Order of 8 September 2009 – 2 BvQ 56/09 –

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


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. 



This press release is also available in the original german version.