For many asylum seekers in Germany, the anxious wait for family reunification to be approved or for people to be transferred to Germany is a bureaucratic nightmare. But most people are currently at the mercy of an agreement between the German and Greek authorities, which has limited the number of people who can be transferred per month. A recent case from Germany's Administrative Court in Wiesbaden may offer some hope.
In 2016, most people were transferred under the Dublin Regulation from Greece to other member states on family reunification grounds - last year there were 946 transfers. As noted on the Asylum Information Database, in 2016, as in 2015, "the most frequent trend was for families not to have already applied for asylum in Greece, but for one or more family members to travel onwards and lodge their first application in another EU Member State." (http://www.asylumineurope.org/reports/country/greece/asylum-procedure/procedures/dublin)
However, in recent months, attention has been drawn to an alleged agreement between the German and Greek authorities, which puts a cap on the number of people who can be transferred each month from Greece to Germany on family reunification grounds.
In an open letter to the German and Greek governments, the UNHCR and the European Commission and among others the human rights organization, Solidarity Now said, "this situation is jeopardizing the whole process and undermines the right of asylum seekers to family reunification, as provided by Dublin III Regulation and violates further their right to family life as stipulated in Article 8 of the European Convention on Human Rights as well as Article 7 of the EU Charter of Fundamental Rights."
Solidarity Now also published a response by the Greek authorities, citing it as evidence of such an agreement. The Greek authorities wrote, "The German Dublin Unit requested from our department the transfer of asylum seekers in controlled numbers per month without consideration to the six-month deadline for the completion of the transfer as provided by art. 29 of the EU Regulation 604/2013."
This means that people are trapped in limbo. Although entitled to be transferred, they are left waiting indefinitely while the six-month time limit for their transfer expires.
An important case from July 2017 called Mengesteab turned on the issue of time limits. Although not binding on the court, the Advocate General of the European Court of Justice issued the following opinion in this case, on the importance of EU Member States following the time limits set out in the Dublin III Regulation.
She wrote that "the time limits set out in the Dublin III Regulation are central to its operation and provide a degree of certainty to both applicants and Member States." She rejected the argument that the time limits only govern inter-state relations, since the operation of those time limits has substantive implications for the applicants. Therefore, applicants should be able to challenge transfer decisions where member states fail to meet the applicable time limits.
German authorities must follow Dublin III Regulation
In this case a Syrian minor, who had applied for asylum in Germany and whose application was pending, had applied for his parents and three underaged brothers in Greece to join him in Germany, according to Article 10 of the Dublin III Regulation.The formalities of the application had been processed. In March 2017, the Greek authorities had requested Germany to take charge of the family members. This request was accepted by the German authorities on the 30 of March 2017. Article 29 (1) of the Dublin III Regulation states that any such transfer should be carried out as soon as possible - but at the latest within six months of "acceptance of the request by another Member State to take charge or to take back the person concerned..."
The problem was that, many months later, the family still had not been transferred. With the six-month deadline approaching, the applicants were at risk of losing their right to be transferred according to the Dublin regulation, meaning that the right to be reunited and enter into the asylum procedure in Germany could be lost.
The court held that the family had a subjective right to be transferred within the six-month timeframe set out in the Dublin III Regulation and ordered the German authorities to transfer the family before 30 September 2017. It also held that any agreement between the German and Greek authorities did not remove Germany's responsibility to transfer the family within six months. Further, the court stated that "this time limit starts to run from the day the German authorities accept the take-charge request (in this case: 30 March 2017), and not from the day the Greek authorities confirm receipt of that acceptance (in this case: 3 April 2017)."
The court did not pass judgment on the legality of the agreement between the German and Greek authorities. But this case is very important in terms of reinforcing the rights of asylum seekers under EU law and the requirement of Member States to abide by the Dublin III Regulation.