Systemic weaknesses in the Member State granting protection only reach the particularly high threshold for the assumption of a violation of Art. 4 CFR or Art. 3 ECHR if the indifference of the authorities of the Member State in question would have the consequence that a person who is completely dependent on public assistance would find himself in a situation of extreme material hardship, irrespective of his will and his personal decisions, which does not enable him to satisfy his most basic needs, such as, in particular, food, water and housing, and which affects his physical or mental health or places him in a state of destitution incompatible with human dignity
Unofficial translation, original decision in German here https://lnkd.in/e7UFW-a4
Higher Administrative Court of the Free Hanseatic City of Bremen OVG: 1LB371/21
COURT DECISION: 5 K 1001/19
On behalf of the people!
Judgment November 16th, 2021
Attorney at Law: ..
In the administrative law case
..
- Plaintiff and appellant -
against
the Federal Republic of Germany, represented by the Federal Minister of the Interior, for Construction and Home Affairs, who is represented by the President of the Federal Office for Migration and Refugees,
- defendant and appellant -
the Higher Administrative Court of the Free Hanseatic City of Bremen - 1st Senate - by the President of the Higher Administrative Court Prof. Sperlich, the judge at the Higher Administrative Court Dr. K. Koch and the judge at the Higher Administrative Court Dr. N. Koch as well as the honorary judges Rikhteh Garan Esfahani and Schroiff on the basis of the oral proceedings of November 16, 2021 found in favor of the plaintiff:
On the appeal of the plaintiff, the judgment of the Administrative Court of the Free Hanseatic City of Bremen - 5th Chamber - of June 25, 2020 is amended.
The decision of the Federal Office for Migration and Refugees of May 8, 2019, with the exception of the decisions made in No. 3, Sentence 4, that the plaintiff may not be deported to the Syrian Arab Republic, is annulled.
The costs of the proceedings of both instances shall be borne by the defendant. No court costs shall be charged.
The judgment is provisionally enforceable with respect to the costs against security in the amount of 110% of the amount to be enforced on the basis of the judgment.
The appeal is not admitted.
Facts
The plaintiff appeals against a decision of the Federal Office for Migration and Refugees rejecting his asylum application as inadmissible and threatening him with deportation to Greece.
The ... in ... / Syria is a Syrian citizen. According to his own statements, he traveled from Syria to Turkey in December 2015 and stayed there for about one and a half years before continuing his journey to Greece. In response to his application for asylum filed there, the Greek state granted him international protection on March 29, 2018.
According to his own statements, the plaintiff entered the federal territory in March 2019 and filed an asylum application on March 20, 2019. During his hearing before the Federal Office on 03.04.2019, he essentially stated that he had been forced to apply for asylum in Greece; in fact, Germany had been his destination. His brother was very ill and needed his support. In Greece, his brother had not received the necessary medical care. The security situation in Greece was worrying.
In its decision of May 8, 2019, the Federal Office rejected the plaintiff's application for asylum as inadmissible (No. 1) and determined that there were no prohibitions on deportation pursuant to section 60 (5) and (7) sentence 1 of the Residence Act (No. 2). It ordered him to leave the Federal Republic of Germany within one week of notification of the decision and threatened him with deportation to Greece or a state to which he was allowed to enter or which was obliged to take him back, with the exception of Syria, if he did not comply with this deadline for leaving the country (paragraph 3).
The entry and residence was limited to 30 months from the date of deportation (paragraph 4) and the enforcement of the threat of deportation was suspended (paragraph 5). The Federal Office essentially stated that the inadmissibility decision was based on section 29(1)(2) of the Asylum Act. Due to the fact that international protection had already been granted in Greece, the applicant's application for asylum was inadmissible. The current humanitarian conditions for recognized beneficiaries of protection in Greece do not lead to the assumption that there would be a violation of Art. 3 ECHR if the plaintiff were deported.
On May 16, 2019, the plaintiff filed an action and additionally argued that he would be threatened with inhuman or degrading treatment in Greece. The recognized beneficiaries of protection in Greece had only on paper the same rights as the Greek population. Not even for a transitional period, the satisfaction of basic needs is guaranteed; he is threatened with acute homelessness and destitution. The capacities in the shelters for the homeless are limited or not available at all for returnees. Basic medical care was just as inadequate as the supply of food.
The plaintiff has applied for
annul the decision of the Federal Office for Migration and Refugees of May 8, 2019 with regard to paragraphs 1, 2, 3 sentences 1 to 3 and paragraph 4,
in the alternative,
Order the defendant to declare that there is a ban on deportation pursuant to section 60(5) and (7) sentence 1 of the Residence Act with respect to Greece, annulling paragraph 2 of the decision of the Federal Office for Migration and Refugees of 8 May 2019.
The defendant filed a written motion to dismiss the action.
The Administrative Court dismissed the action in its judgment of June 25, 2020, stating that the requirements of section 29(1)(2) of the Asylum Act were met. The plaintiff had been granted international protection in Greece on March 29, 2018. The inadmissibility decision was also compatible with Union law. An asylum application may not be rejected as inadmissible under Article 33(2)(a) of Directive 2013/32/EU despite the granting of international protection in a Member State of the European Union if the person concerned faces a serious risk of inhuman or degrading treatment there within the meaning of Article 4 of the Charter of Fundamental Rights or Article 3 of the ECHR. According to the recent case law of the European Court of Justice, a "particularly high threshold of seriousness" must be exceeded in order to assume such a danger.
This is the case if the indifference of the authorities of a Member State results in a person wholly dependent on public assistance, irrespective of his will and personal choice, finds himself in a situation of extreme material deprivation which does not enable him to satisfy his most basic needs, such as, in particular, the need to eat, to wash and to find a place to live, and which affects his physical or mental health or places him in a state of destitution incompatible with human dignity.
In the case of the plaintiff, it must be assumed that if he returns to Greece, he will be able to access the most basic needs, despite the difficult conditions prevailing there. At least for able-bodied, single, healthy men, the particularly high threshold of materiality for inhumane treatment under Article 4 CFR or Article 3 ECHR had not (yet) been reached, since these persons could be expected to show a high degree of initiative. It is true that, in the event of a return to Greece, the plaintiff would neither fulfill the eligibility requirements for the granting of social benefits nor for the granting of social housing allowance. He would also not benefit from the services of the ESTIA, HELIOS 2 or cash card programs, but would initially be on his own. However, it is to be expected that the HELIOS 2 program will at least partially cushion the precarious housing situation.
Furthermore, there are no current objective reports that homelessness among recognized beneficiaries of protection is occurring on a massive scale or even on an increased scale. This would indicate that the possibilities for accommodation in shelters for the homeless, shelters run by non-governmental organizations or through private networks were actually being used. It was possible to predict that the plaintiff would (also) have access to shelter and food in the first period after his return. In the large cities in particular, a large number of church organizations and international and national aid organizations were active. Moreover, beneficiaries of protection would have access to health care under the same conditions as Greek nationals, even if actual access to medical care was difficult in practice.
In its decision of 14 September 2021, the Senate dismissed the appeal against the judgment of the Administrative Court on the grounds of the fundamental importance of the case.
With reference to case law of the administrative courts that has been handed down in the meantime, the plaintiff additionally argues that he would not be able to pursue gainful employment upon his return to Greece. A legal employment relationship can only be entered into with a valid tax registration number. This could only be obtained with proof of accommodation. Beneficiaries of international protection without residence permit who return to Greece without a residence permit or are deported, do not receive a social security number. An application is only possible if a residence permit is granted. However, this could take up to one year in view of the current waiting times. Nor could they be referred to national social security benefits. To be eligible for such programs, extensive documentation is required, including a tax number, a social security number, a Greek bank account, a current tax return, proof of income for the last six months, as well as a lease agreement and utility bill for an apartment rented at least six months prior to submitting the application, or a certificate of homelessness. Such a certificate of homelessness is usually issued only to persons living on the street and identified as such by street workers in the course of their work. Among others, homeless people living in squats or unregistered in refugee shelters, or who regularly change location for security reasons, are excluded. In addition, a certificate of homelessness for certain reasons, such as access to social services, would be issued only if all other requirements for access were met. Access to food distributed by the few soup kitchens was limited in practice.
The plaintiff requests
to amend the judgment of the Administrative Court of Bremen dated June 25, 2020 (5 K 1001/19) and to annul the decision of the defendant dated May 8, 2019, alternatively to oblige the defendant to establish prohibitions of deportation with regard to Greece.
The defendant requests the court to dismiss the appeal.
It submits that the living conditions of persons granted protection status in Greece are sufficient. In Greece, there are no such glaring deficiencies that justify the assumption that recognized beneficiaries of protection are subjected to degrading or inhuman treatment within the meaning of Article 3 of the ECHR. This is also confirmed by the case law of the administrative courts. The United Nations Refugee Agency (UNHCR) offers a multilingual website on which recognized beneficiaries of protection can inform themselves about their rights and practical access to health care. The plaintiff had received government assistance of EUR 150 before leaving Greece. In addition, he had received money from compatriots for his flight to the Federal Republic. This indicated that he had a certain talent for communication and was able to build up trust even with people he did not know. Such (..) networks were, according to the the case law of the Federal Administrative Court, such "national" networks must be taken into account in the decision. If necessary, the plaintiff could also be supported by his brother. An assurance from Greece dated 08.01.2018 and an email dated 13.07.2020 confirmed that the Qualification Directive (2011/95/EU) had been transposed into Greek law and was being applied.
Through this assurance, the assurance required by the Federal Constitutional Court regarding access to shelter, food and sanitary facilities after return to the Member State was fulfilled.
For further details of the facts and the dispute, reference is made to the contents of the court files and the administrative documents of the defendant which have been subpoenaed. The sources of knowledge introduced in the proceedings were the subject of the oral proceedings insofar as they have been utilized in this decision.
Reasons for decision
The plaintiff's admissible appeal is well-founded.
The Administrative Court wrongly dismissed the action. The judgment of the 5th Chamber - single judge - of 25.06.2020 (5 K 1001/19) was to be amended and the contested decision of the Federal Office for Migration and Refugees (hereinafter: Federal Office) of 08.05.2019 was to be annulled.
I. The action is admissible; in particular, the action for annulment is admissible pursuant to Sec. 42 (1) Alt. 1 VwGO is the only admissible type of action with regard to the main application for annulment of the decision of inadmissibility (No. 1 of the decision). Decisions that reject an asylum application as inadmissible without examining the substantive requirements for recognition, i.e. without further examination of the merits, are to be challenged by means of an action for annulment (see BVerwG, judgment of. 14.12.2016 - 1 C 4.16, juris marginal no. 17 et seq. and judgment of 01.06.2017 - 1 C 9.17, juris marginal no. 15). A judicial reversal of the decision of inadmissibility has the consequence that the Federal Office must continue the proceedings and make a decision on the merits.
II. The action is also well-founded. The decision of the Federal Office of May 8, 2019 is unlawful at the time of the oral proceedings before the Senate, which is decisive pursuant to Section 77 (1) sentence 1 of the Asylum Act, and violates the rights of the plaintiff, Section 113 (1) sentence 1 of the VwGO.
The defendant cannot base its inadmissibility decision on § 29 (1) No. 2 Asylum Act. According to this provision, an application for asylum is to be rejected as inadmissible if another Member State of the European Union has already granted the foreigner international protection within the meaning of Section 1(1)(2) of the Asylum Act. With this provision, the national legislator has made use of the authorization in Article 33(2)(a) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (Asylum Procedures Directive, hereinafter: Directive 2013/32/EU) (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris para. 14).
a) It is true that the (written) factual requirements of Section 29 (1) no. 2 Asylum Act are met. The Senate assumes that the plaintiff was granted international protection in Greece. According to an "IFM message with Eurodac status code 912" contained in the authority file of the Federal Office, the plaintiff was granted international protection on 29.03.2018. This is consistent with the claimant's statements in his hearing that he applied for international protection in Greece on 20.07.2017 and received it on 29.03.2018. On the same day, he had received a residence permit for a period of three years. No indications of a withdrawal or revocation of the protection status have been presented or are otherwise apparent.
b) However, the inadmissibility decision pursuant to § 29.1 No. 2 of the Asylum Act is not compatible with Union law in the case of the applicant.
Article 4 of the Charter of Fundamental Rights of the European Union (hereinafter: CFR) prohibits - just like Article 3 ECHR - without exception any form of inhuman or degrading treatment and, with its fundamental meaning, has a general and absolute character (ECJ, Judgment of. 19.03.2019 - C-163/17 (Jawo), juris para. 78). The guarantee of Art. 4 CFR also applies after the conclusion of the asylum procedure, in particular also in the case of the granting of international protection. According to the case law of the European Court of Justice, Article 33(2)(a) of Directive 2013/32/EU therefore prohibits Member States from rejecting an application for asylum as inadmissible despite the granting of international protection in another Member State of the European Union if the person concerned faces a serious risk of inhuman or degrading treatment in the Member State within the meaning of Art. 4 CFR or Art. 3 ECHR (see ECJ, Decision of 13.11.2019 - C-540/17 and C-541/17 (Hamed and Omar), juris para. 35). Violations of Article 4 CFR in the Member State where protection is otherwise granted must therefore not only be taken into account when examining the lawfulness of a threat of deportation, but already lead to the illegality of the inadmissibility decision (with reference to the case law of the European Court of Justice: BVerwG, Urt. v. 17.06.2020 - 1 C 35/19, juris para. 23). The absence of a serious risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights is therefore an unwritten requirement of Section 29 (1) No. 2 of the Asylum Act (BVerwG, judgment of 7 September 2021 - 1 C 3.21, juris marginal no. 16).
However, systemic weaknesses in the Member State granting protection only reach the particularly high threshold for the assumption of a violation of Art. 4 CFR or Art. 3 ECHR if the indifference of the authorities of the Member State in question would have the consequence that a person who is completely dependent on public assistance would find himself in a situation of extreme material hardship, irrespective of his will and his personal decisions, which does not enable him to satisfy his most basic needs, such as, in particular, food, water and housing, and which affects his physical or mental health or places him in a state of destitution incompatible with human dignity (ECJ, Judg. v. 19.03.2019 - C-163/17 (Jawo), juris marginal no. 92, Beschluss v. 13.11.2019 - C-540 and 541/17 (Hamed and Omar), juris marginal no. 39; cf. also Nds. OVG, Urt. v. 19.04.2021 - 10 LB 244/20, juris marginal no. 27; OVG NRW, Urt. v. 21.01.2021 - 11 A 1564/20.A, juris marginal no. 28, according to which there is a violation of Art. 4 GRCh or Art. 3 ECHR if the most basic needs ("bed, bread, soap") cannot be satisfied; VGH Bad.-Württ., Beschl. v. 23.04.2020 - A 4 S 721/20, juris marginal no. 5). Whether this particularly high threshold of materiality is reached depends on all the circumstances of the case (ECJ, judgment of. 19.03.2019 - C-297/17 (Ibrahim) et al., juris marginal no. 89; BVerwG, Urt. v. 17.06.2020 - 1 C 35.19, juris marginal no. 27).
According to the case law of the European Court of Justice, this threshold is not reached even in situations characterized by great poverty or a severe deterioration in the living conditions of the person concerned, unless they are associated with extreme material hardship as a result of which the person concerned is in such a serious situation that it can be equated with inhuman or degrading treatment (ECJ, judgment of. 19.03.2019 - C-297/17 (Ibrahim) and others, juris para. 91 and 93). It is also not sufficient that recognized beneficiaries of protection - in contrast to nationals of the country of destination - generally cannot fall back on family solidarity to compensate for the deficiencies of the social system of the Member State (ECJ, judgment of. 19.03.2019 - C-163/17 (Jawo)' juris para. 94).
The European Court of Justice has again emphasized the "fundamental importance" of the principle of mutual trust between the Member States of the European Union, which justifies the assumption that the national legal systems of the Member States are capable of providing equivalent and effective protection of fundamental rights (ECJ, Judgment v. 19.03.2019 - C-163/17 (Jawo)' juris para. 80 to 82).
With these rulings, the European Court of Justice has set a "hard line" and specified and partially tightened the standards for returns in the Dublin area (cf. VGH Bad.-Württ., Beschl. v. 27.05.2019 - A 4 S 1329/19' juris Rn. 4 f.).
The preservation of the minimum subsistence level within the meaning of Art. 4 GRCh is to be considered solely in relation to the result. If extremely poor material living conditions, which give rise to the danger of a violation of Art. 4 GRC, can be averted by one's own actions (e.g. the use of one's own labor) or the use of the assistance or support services of third parties (be it private third parties, be it non-governmental assistance or support organizations), there is no longer a serious danger of a situation of extreme material need, which under certain circumstances can trigger a state duty of protection to provide (supplementary) state benefits. The aid or support services provided by non-governmental aid or support organizations operating on the ground must also exist in reality for beneficiaries of international protection and - without unreasonable access conditions - must be sufficiently reliable and available on a permanent basis to the extent required; in this case, it is also irrelevant that there is generally no enforceable legal entitlement to them (BVerwG, judgment of September 7, 2021 - 1 C 3.21, juris, marginal no. 25).
The mere fact that the living conditions in a Member State do not comply with the provisions of Art. 20 et seq. in Chapter VII of Directive 2011/95/EU does not, in view of the fundamental importance of the principle of mutual trust between the Member States, lead to a restriction of the exercise of the rights granted in Art. 33 (2) (a) of Directive 2013/32/EU as long as the threshold of relevance of Art. 4 CFR has not been reached (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris marginal no. 24 with further references). Rather, each Member State may - subject to exceptional circumstances - assume that all other Member States observe Union law and in particular the fundamental rights recognized therein. This also applies to the application of Article 33(2)(a) of Directive 2013/32/EU and also to the case that the beneficiary of protection does not receive any benefits or only receives benefits to a significantly limited extent in the Member State granting protection compared to other Member States, without, however, being treated differently from the nationals of that Member State and being exposed to the serious risk of treatment that violates Article 4 CFR.
Differently is only the case if the Common European Asylum System encounters major dysfunctions in practice in the Member State granting protection and a person would thereby actually be exposed to a serious risk of inhuman or degrading treatment within the meaning of Art. 4 CFR (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris para. 25).
When assessing the risk of a violation of Art. 4 CFR in the Member State granting protection, the European Court of Justice focuses on the existence of a serious risk. This corresponds to the standard of the actual risk ("real risk") in the case law of the European Court of Human Rights on Art. 3 ECHR or the considerable probability in national law (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris marginal no. 27).
Pursuant to Section 108 (1) sentence 1 VwGO, the court must be fully convinced of the correctness of both the basis of the forecast and the forecast to be made on the basis of the standard of considerable probability (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris marginal no. 28 with further references. ) and to assess, on the basis of objective, reliable, accurate and duly updated information and with regard to the standard of protection of fundamental rights guaranteed by Union law, whether there are either systemic or general vulnerabilities in the country of destination that would expose precisely the returnee, as a recognized refugee, to the risk of extreme material hardship in violation of Article 4 CFR (BVerwG, judgment of 17.06.2020 - 1 C 35.19, juris marginal no. 29).
According to these standards, the defendant may not reject the plaintiff's application for asylum as inadmissible pursuant to Section 29 (1) no. 2 Asylum Act, since the plaintiff faces a serious risk of inhuman or degrading treatment within the meaning of Article 4 CFR or Article 3 ECHR if he is returned to Greece. To the conviction of the court, the plaintiff will with considerable probability, irrespective of his will and his personal decisions, find himself in a situation of extreme material hardship in Greece and thus will not be able to satisfy his most elementary needs ("bed, bread, soap") for a longer period of time.
aa) After evaluating the available evidence and current press reports, it must be assumed that the plaintiff will not be able to find decent accommodation if he returns to Greece, but will be homeless for a longer period of time. The Administrative Court correctly assumed that the plaintiff, as a returning beneficiary of international protection in Greece, will in principle be responsible for finding his own accommodation. For recognized beneficiaries of protection, the in-country equal treatment with Greek citizens applies. There is no state program in Greece in the form of housing allocation (Auswärtiges Amt, information to the VG Bayreuth of 21.08.2020, p. 1, as well as to the VG Leipzig of 28.01.2020, p. 2). There are also no special accommodation places for recognized beneficiaries of protection (AIDA, Country Report: Greece 2019 Update, p. 218; BFA, Länderinfor- mationsblatt Griechenland vom 01.06.2021, p. 26). The accommodations of the UNHCR accommodation program "ESTIA" are not available to recognized beneficiaries of protection, as the program only addresses asylum seekers (Auswärtiges Amt, Auskünfte an das VG Leipzig vom 28.01.2020, p. 2, und an das VG Potsdam vom 23.08.2019, p. 2). Inter- national beneficiaries of protection must therefore obtain housing on the open housing market.
Regardless of the question of affordability, private renting of housing for or by recognized beneficiaries of protection is made more difficult by the traditional preference for renting to family members, acquaintances and students, as well as occasionally by prejudices (BFA, Länderinformationsblatt Griechenland vom 01.06.2021, p. 26 m.w.N.).
Persons with international protection status also reported problems in communicating with landlords, discrimination in the housing market and xenophobic attitudes on the part of local authorities. In addition, most beneficiaries of protection are unable to find rental housing due to the lack of affordable real estate and high demand, especially in Attica (ACCORD, Greece: Supply Situation and Support Services for Persons with International Protection Status (Returning to Greece) [a-11601], Aug. 26, 2021, p. 16). Persons who have no shelter and do not have the money to rent one often live in overcrowded apartments, abandoned houses without access to electricity or water, or become roofless (BFA, Country Information Sheet Greece dated 01.06.2021, p. 26 with further references).
Since May 2020, beneficiaries of international protection have had to leave the Greek initial reception centers or the accommodation provided for asylum seekers within 30 days of being granted protection status. This led, among other things, to NGO partners withdrawing from the ESTIA II program. The EU-funded HELIOS 2 (Hellenic Integration Support for Beneficiaries of International Protection) program, which is mainly run by the International Organization for Migration (IOM), is the only available shelter program for beneficiaries of protection (ACCORD, Greece [...] of 26.08.2021, p. 14 with further references). It is aimed at recognized beneficiaries of protection with recognition as of 01.01.2018, with preference given to beneficiaries of protection with recognition as of 01.01.2019. The program includes various support measures for finding housing and signing a rental contract. It aims to support beneficiaries of protection to become independent members of Greek society as well as to provide a transition from the current system of temporary housing.
Recognised beneficiaries of protection are to receive rent subsidies to rent housing for a minimum of six and a maximum of twelve months. The program provides housing assistance for a maximum of 5,000 persons per six-month period. Thus, housing assistance reaches only a portion of the beneficiaries of protection in Greece. In the period from Jan. 1, 2018, to the end of 2020, a total of 71,812 persons received international protection in Greece. Of these, around 16% have received rent subsidies from the HELIOS program (Pro Asyl / RSA, Statement - On the current situation of beneficiaries of international protection in Greece, April 2021, p. 9). Regarding the application deadline for participation in the program, there are different indications. While ACCORD reports that an application can be submitted within twelve months from the granting of protection status (AC- CORD, Greece [...] of 26.08.2021, p. 15), the Federal Foreign Office states that the application must be submitted within 30 days from the granting of protection status (Auswärtiges Amt, Auskunft an VG Magdeburg of 26.11.2020, p. 3).
Apart from the fact that these application deadlines have both already passed in the case of the plaintiff, the "HELIOS-2 Program" is not available to recognized beneficiaries of protection who return to Greece, according to the Federal Foreign Office (Auswärtiges Amt, Auskunft an VG Leipzig vom 28.01.2020, p. 2; RSA & Pro Asyl, Stellungnahme im Verfahren "Kurdestan Darwesh and others v. Greece and the Netherlands" vom 04.06.2020, p. 6 Rn. 31). Therefore, support by the HELIOS-2 program is ruled out for the claimant.
As of 01.01.2019, the social housing allowance was introduced in Greece. The maximum amount is 70 euros for a single person and 210 euros for a multi-person household. The prerequisite for receiving the benefit is proof of a rental contract that is still valid for at least six months and is entered in the TAXIS-Net tax database. Furthermore, the social housing allowance requires a legal prior stay in Greece of at least five years, whereby in the case of beneficiaries of international protection, the length of stay from the date of the asylum application is taken into account (Auswärtiges Amt, Auskünfte an das VG Leipzig vom 28.01.2020, p. 2, und an das VG Potsdam vom 23.08.2019, p. 1, 2; Pro Asyl / RSA, Stellungnahme, April 2021, p. 19). Also a benefit receipt of the social housing allowance would therefore not be an option for the plaintiff in the event of a return to Greece.
In the absence of own resources, there is the possibility of accommodation in municipal shelters for the homeless, which, however, are limited. There are four facilities for the homeless in Athens, but they are chronically overcrowded and have waiting lists (BFA, Länderinformationsblatt Griechenland vom 01.06.2021, p. 26 m. w. N.). The Federal Office for Immigration and Asylum reports on housing offered sporadically by non-governmental organizations, e.g. Caritas Hellas, Orange House and PRAKSIS, while at the same time pointing out that the overall number of shelters in Athens is insufficient. ACCORD, on the other hand, reports with reference to RSA that it is not aware of any other programs by non-governmental organizations that support beneficiaries of international protection in accessing housing. The organizations Greek Council for Refugees, Solidarity Now, Arsis and PRAKSIS reported that, apart from HELIOS, they do not currently offer housing or housing assistance to beneficiaries of protection. No information was known about other organizations offering housing for beneficiaries of protection (ACCORD, Greece [...] of 26.08.2021, p. 18 with further references).
The first-instance judgment already assumes that recognized beneficiaries of protection will have great difficulties in finding decent housing (p. 15 and 16 of the judgment). However, the administrative court assumes that the support provided by the HELIOS 2 program to recognized beneficiaries of protection will at least partially cushion the worsening precarious housing situation. In addition, there were no reports that homelessness among recognized beneficiaries of protection was occurring on a massive scale or even on an increased scale, so that it could be assumed that the opportunities for accommodation in shelters for the homeless, shelters run by non-governmental organizations or through private networks would actually be accepted and used (p. 16 of the abstract of judgment).
In this respect, however, it must be taken into account that the accommodation situation of persons eligible for international protection in Greece has become even worse in recent months, so that the assessment of the administrative court cannot be upheld on the basis of current findings and publicly available information. Rather, the Senate assumes that at the relevant time of the hearing, numerous beneficiaries of international protection are homeless in Greece and that the plaintiff is also threatened with this with considerable probability (thus also OVG NRW, Urt. v. 21.01.2021 - 11 A 2982/20.A, juris marginal no. 43 ff.; Nds. OVG, Urt. v. 19.04.2021 - 10 LB 244/20, juris marginal no. 47 ff., in each case with further references).
In a statement of June 2021 submitted by the defendant, the German Embassy in Athens states that homelessness among refugees and migrants is still not an obvious mass phenomenon.
Nevertheless, it appears to be very difficult to make a reliable assessment of the homelessness situation in a large Greek city or even in the country as a whole, especially since there is presumably also invisible homelessness (Embassy of Athens, Unterbringung und Sicherung des Existenzminums anerkannt Schutzberechtigter in Griechenland, June 2021, p. 2 f.). Pro Asyl, on the other hand, states that beneficiaries of international protection in Greece mostly end up homeless. In recent months, the situation has worsened.
Compared to previous years, the number of beneficiaries of international protection jumped in 2020 due to accelerated asylum procedures; a total of 35,372 people - twice as many as in 2019 - were granted international protection (Pro Asyl / RSA, statement, April 2021, p. 6). The German Embassy in Athens puts the total at 34,325 (Un- terbringung und Sicherung des Existenzminimums anerkannt Schutzberechtigter in Grie- chenland, June 2021, p. 1). As a result of a change in the asylum law, since June 1, 2020, everyone has been required to leave the refugee camps or shelters where they were housed during the asylum process within 30 days of being granted protection. 11,237 people were asked to leave their accommodation on June 1, 2020. Many had complied with the request. In addition, there were thousands of beneficiaries of international protection who were already homeless, living inof- ficially in camps or under other unacceptable housing conditions because they had never lived in reception facilities or had already had to leave them (ProAsyl, statement in the proceedings "Kurdestan Darwesh and others v. Greece and the Netherlands" of 04.06.2020, para. 31).
In the period September to November 2020, 6,626 persons were reportedly transferred from the Greek islands to the mainland (BT-Drs. 19/25036 of 08.12.2020, p. 4). Many of them lived homeless on the streets of the big cities and were dependent on alms (Der Standard, 30.09.2020: Das Elend der anerkannten Flüchtlinge auf dem grie- chischen Festland, https://www.derstandard.de/story/2000120349076/das-elend-der-an- erkannten-fluechtlinge-auf-dem-griechischen-festland; OVG NRW, Urt. v. 21.01.2021 - 11 A 2982/20.A, juris marginal no. 47 with further references). One place where the misery of the recognized refugees expelled from the camps is particularly visible is Victoria Square in Athens. Many refugees who had become homeless lived there for long periods of time without any shelter, medical care, hygiene infrastructure, state support (BT-Drs. 19/24115 of 06.11.2020, p. 1; Pro Asyl / RSA, statement, April 2021, p. 6).
Based on these findings and information, the Senate is convinced that in the event of his return to Greece, the plaintiff will with considerable probability not be able to obtain access to legal, dignified accommodation. As the Administrative Court has already correctly pointed out, the plaintiff neither fulfills the eligibility requirements for the granting of the social housing allowance nor can he benefit from the services of the ESTIA or HELIOS 2 program, but in the event of a return to Greece he will probably be on his own in the search for accommodation.
The plaintiff can also not be referred to his own initiative, networks of his compatriots or the support of churches or local or international non-governmental organizations. It is true that the possibilities of one's own actions as well as support from private third parties and locally active non-governmental aid or support organizations must be taken into account when assessing whether there is a risk of a violation of Article 4 CFR in the event of repatriation or deportation (BVerwG, judgment of 07.09.2021 - 1 C 3.21, juris para. 26). However, this does not help in the specific case, since such assistance or support services for beneficiaries of international protection must also exist in reality and - without unreasonable access conditions - must be sufficiently reliable and available to the required extent on a permanent basis. This is lacking in the specific case. According to the above explanations, it must be assumed that accommodation possibilities through church projects or non-governmental organizations in Greece - if they still exist at all - are extremely limited and permanently overloaded. According to his credible statements at the hearing, the plaintiff also has neither family nor sufficient friendship ties to persons living in Greece who could support him in finding accommodation and financing and renting it. Financial support by his brother, as claimed by the defendant, is also not to be expected according to the result of the hearing of the plaintiff in the oral proceedings.
The plaintiff can also not be referred to "informal possibilities" of accommodation in abandoned or occupied buildings, because the stay in such buildings would be illegal on the one hand and on the other hand unreasonable because of the inhumane conditions prevailing there in most cases (so also Nds. OVG, Urt. v. 19.04.2021 - 10 LB 244/20, juris marginal no. 49; OVG NRW, Urt. v. 21.01.2021 - 11 A 1564/20.A, juris marginal no. 62).
bb) In the event of his return to Greece, the plaintiff will also, with considerable probability, not be able to earn at least his subsistence level from his own gainful employment.
Access to the labor market is legally available to persons living permanently and legally in the country under the same conditions as Greek citizens, and thus in principle also to recognized beneficiaries of protection (BFA, Country Information Sheet Greece of June 1, 2021, p. 27; ACCORD, Greece [...] of August 26, 2021, p. 24). In fact, however, the labor market is hardly accessible for recognized beneficiaries of protection. Access to the labor market is dependent on the presentation of numerous official documents and the fulfillment of further requirements (Pro Asyl / RSA, statement, Ap- ril 2021, p. 11). In order to be legally employed, beneficiaries of international protection need a valid residence permit (ADET decision), a tax identification number and a social security number (ACCORD, Greece [...], 26.08.2021, p. 24). In order to apply for a social security number, beneficiaries of international protection in Greece must be in possession of a valid residence permit (ADET). Without this, beneficiaries of protection cannot access the labor market. In practice, however, there are waiting periods of up to one year between application and issuance of a residence permit (Pro Asyl / RSA, Stellung- nahme, April 2021, p. 14).
The general economic situation, the language barrier for persons who - like the plaintiff - do not speak the Greek language, and the high unemployment rate make it even more difficult for beneficiaries of international protection to enter the Greek labor market (AIDA, Country Report Greece, Update 2019, p. 219; ACCORD, Greece [...], August 26, 2021, p. 25). Some nongovernmental organizations offer selective programs for training and job search assistance.
However, the chances of finding a job are low. The state employment agency OAED already has hardly any resources for active job placement for Greek citizens (support ratio: 1 employee for over 1,000 unemployed) and has not yet launched a program for the labor integration of refugees. Migration into the Greek labor market has occurred in the past mainly in the agriculture, construction, household-related and other services sectors. However, job opportunities have generally deteriorated significantly due to the ongoing financial and economic crisis (BFA, Län- derinformationsblatt Griechenland vom 01.06.2021, p. 27). The economic impact of the Covid-19 protection measures has also hit the Greek economy hard. According to the European Commission, the Greek economy fell sharply in the year 2020 slumped by ten percent. Greece has the highest unemployment rate within the EU at 16.2% (as of Novem- ber 2020) (Pro Asyl / RSA, Opinion, April 2021, p. 21).
In view of the high unemployment rate and the other aspects that make access to the labor market even more difficult, such as in particular the claimant's lack of language skills and the absence of private networks, it hardly seems possible that he will find gainful employment in the foreseeable future after returning to Greece that will allow him to earn his subsistence level himself.
cc) It is also highly unlikely that the plaintiff will have access to state social benefits that could help him secure his subsistence level in Greece.
In Greece, recognized beneficiaries of protection have access to the basic social security system, which has been gradually introduced since February 2017, provided that they have legally resided in Greece for two years. The social assistance system is based on three pillars: The first pillar provides a social allowance of 200 euros per individual (AIDA, Country Report Greece, Update 2019, p. 222). This pillar is established and requires an electronic Greek-language application (Auswärtiges Amt, Information to VG Leipzig, Jan. 28, 2020, p. 2 f.). The second pillar consists of in-kind and counseling services, including the distribution of dry staple foods (e.g., flour, rice), clothing, and hygie- ne items. The third pillar (labor market integration) is still under construction (Auswärtiges Amt, Auskünfte an das VG Leipzig vom 28.01.2020, p. 3 und das VG Stade vom 06.12.2018, p. 4 f.; BFA, Länderinformationsblatt Griechenland vom 01.06.2021, p. 24).
However, bureaucratic hurdles, governmental action deficits, lack of implementation of the law, and the effects of the economic crisis make it difficult for beneficiaries of international protection to claim these rights (MIT, The living conditions of applicants and beneficiaries of international protection, February 2021, p. 19). There is no established administrative practice to date. The prerequisite for receiving general social assistance is the submission of various documents (residence permit, social insurance number, bank details, tax return via the online portal Taxis-Net), whereby proof of a permanent one-year minimum stay in Germany must be provided in the form of the previous year's domestic tax return (MIT, February 2021, p. 19).
According to the Department of State, in order to receive basic social security benefits, the proof of a permanent legal minimum stay of two years is required (Aus- wärtiges Amt, information to the VG Leipzig of January 28, 2020, p. 3 and to the VG Berlin of December 04, 2019, p. 9; also OVG NRW, Urt. v. 21.01.2021 - 11 A 2982/20.A, juris marginal no. 92). The documents must always be submitted online and in Greek; no interpreters are provided by the state (BFA, Länderinformationsblatt Griechenland vom 01.06.2021, p. 24).
In principle, homeless people can also be entitled to the guaranteed minimum income. However, they must submit the other required documents mentioned above and a certificate of homelessness to be requested with these documents. Persons who live in occupied houses, irregularly abscond to refugee camps, stay with compatriots for days at a time, or regularly change their place of residence on the street are not covered. In addition, certificates of homelessness, which serve the purpose of applying for the guaranteed minimum income, are only issued if all other requirements of the benefit to be applied for are also met. Proof of their homelessness is thus not possible in practice for many homeless people. For this reason, Pro Asyl points out that the guaranteed minimum income is de facto not available to international protection beneficiaries returning to Greece (Pro Asyl / RSA, Stellung- nahme, April 2021, page 19).
Some sources report that statistics do not show how many beneficiaries of international protection receive the guaranteed minimum income (Pro Asyl / RSA, Position Paper, April 2021, p. 18). In contrast, some sources state that the vast majority of recognized beneficiaries of protection do not yet receive basic social security (BFA, Country Information Sheet Greece, June 1, 2021, p. 24; Federal Foreign Office, Information to the Stade Administrative Court, December 6, 2018, p. 5).
As a recognized beneficiary of protection returning from abroad, the plaintiff is already excluded from receiving basic social security benefits due to the lack of the required legal prior residence. Against this background, the defendant's submission that, according to the UNHCR, 94% of the beneficiaries of international protection in the ESTIA program have a social security number and 66% have a tax number does not lead to a different result. There are no special state assistance programs for beneficiaries of international protection in addition to the general state social system.
The plaintiff cannot obtain any other state social benefits either. He cannot claim benefits from the so-called "cash card system" of the UNHCR, since funds from from this system are only available to asylum seekers. The plaintiff is also not entitled to cash benefits from the unemployment insurance system due to the lack of corresponding previous insurance periods. He can only receive the unemployment card issued by the Greek employment agency OAED for beneficiaries of international protection. This entitles the holder to free use of public transport, free admission to museums, discounts on gas, water and electricity bills, discounts at some fast-food restaurants, mobile phone services and vocational training. However, the plaintiff could not secure his subsistence level solely through the benefits to be obtained with the unemployment card.
dd) Finally, the plaintiff cannot be referred to the networks of his compatriots or the support of churches or local or international non-governmental organizations to secure his subsistence level, even if these are to be taken into account in principle (see BVerwG, judgment of September 7, 2021 - 1 C 3.21, juris, marginal no. 26).
It is true that non-governmental organizations play an important role in the integration of beneficiaries of protection. There are active international as well as local non-governmental organizations in Greece (BFA, Länderinformationsblatt Griechenland vom 01.06.2021, p. 27). Non-governmental organizations maintain soup kitchens where the needy - including those eligible for protection - can receive meals. The Orthodox Church and civil society provide assistance and thus form an elementary safety net against hunger and deprivation (OVG NRW, Urt. v. 21.01.2021 - 11 A 1564/20.A, juris marginal no. 93 with further references).
However, the situation in Greece has also worsened in this respect. Pro Asyl, for example, reports that access restrictions in practice also limited the possibility of using the few existing soup kitchens. Of the five soup kitchens in the Attica region, "Equal Society" makes the serving of food dependent on the presentation of documents such as a tax declaration, a registration address or a certificate of homelessness, as well as a social security number. "Helping Hands - Evangeliki" is not currently accepting new persons. Caritas does not have interpreters and requires registration (Pro Asyl / RSA, statement, April 2021, p. 11).
The current findings do not indicate that support services provided by non-governmental organizations, churches and civil society are available to such an extent that returning beneficiaries of international protection can rely on them on a permanent and sufficiently reliable basis. According to the statement made in the oral
The Senate is also convinced that it is not to be expected that the plaintiff could receive support from family members or friends. Even if acquaintances resident in Greece lent him money on a one-off basis to finance his flight ticket to Germany, it does not follow with the requisite considerable probability that they would also be prepared to provide the plaintiff with essentials over a longer period after his return.
c) Contrary to the view of the defendant, the fact that the plaintiff left Greece voluntarily and thus in part created the conditions for his initial ineligibility for state social benefits in the event of his return also does not prevent the assumption of a violation of Article 4 GRC. For restrictions or encroachments on the fundamental right of Article 4 CFR are generally excluded, since the corresponding guarantee of Article 3 ECHR is unconditionally guaranteed. According to Art. 52 (3) sentence 1 CFR, this also applies to Art. 4 CFR, which therefore has an "absolute character" (Jarass, in: Jarass, Charta der Grundrechte der EU, 4th ed. 2021, Art. 4 Rn. 12 m. w. N.; Höfling/Kempny, in: Stern/Sachs, Europäische Grundrechte-Charta, 1st ed. 2016, Art. 4 Rn. 15).
Insofar as the defendant relies on the fact that in the letter of the Greek Ministry of Migration Policy of 08.01.2018 and the email of 13.07.2020 an assurance is to be seen in the manner required by the Federal Constitutional Court, which excludes the risk of inhuman treatment violating Art. 4 CFR and Art. 3 ECHR, the Senate does not follow this. The letters state in general terms, without reference to the case, that Greece had transposed the Qualification Directive 2011/95/EU into Greek law in good time. On this basis, all beneficiaries of international protection are assured treatment in conformity with the Directive. These statements are not sufficient - especially in view of the reports on the actually prevailing conditions on the ground - to assume an assurance by the Greek state that sufficiently reliably excludes the risk of inhuman treatment in violation of Art. 4 CFR and Art. 3 ECHR (cf. on an older statement by the Greek authorities BVerfG, Beschlussl. v. 31.07.2018 - 2 BvR 714/18, juris para. 25). Moreover, there is no discernible assurance of at least temporary accommodation within the meaning of the case law of the Federal Constitutional Court (cf. Nds. OVG, Be- schl. v. 10.06.2020 - 10 LA 111/20, juris marginal no. 15).
2. A reinterpretation of the inadmissibility decision based on Section 29 (1) no. 2 Asylum Act is not possible in the present case, since in the case of the plaintiff the prerequisites for another element of inadmissibility do not exist in the case of the plaintiff (cf. in this regard BVerwG, judgment of 15.01.2019 - 1 C 15.18, para. 40). In particular, there are no indications that Turkey, as a third country, would be willing to readmit the claimant with regard to Section 29 (1) No. 4 of the Asylum Act and to guarantee him security that meets the requirements of Section 27 of the Asylum Act in conjunction with Article 35 of Directive 2013/32/EU (see BVerwG, judgment of April 25, 2019 - 1 C 28.18, juris, paras. 13, 14).
(3) The determination of the absence of deportation prohibitions pursuant to Section 60 (5) and (7) sentence 1 of the Residence Act made under No. 2 of the decision is premature because the Federal Office is obligated to substantively examine the asylum application of the plaintiff after the revocation of the inadmissibility decision and then to decide on deportation prohibitions.
The threat of deportation in No. 3, sentences 1 to 3 of the contested decision is unlawful because the plaintiff's application for asylum could not be rejected as inadmissible pursuant to Section 29 (1) No. 2 of the Asylum Act. As a result, the basis for ordering the entry and residence ban based on § 11 (1) of the Residence Act also no longer exists.
III The decision on costs is based on § 154 (1) VwGO, § 83b AsylG.
The ruling on provisional enforceability follows from § 167 VwGO in conjunction with § 709 VwGO. § 709
Sentence 1 ZPO.
IV. The appeal is not to be allowed because the requirements of § 132 (2) VwGO are not met.
Notice of appeal
The non-admission of the appeal may be contested by appeal. The appeal must be lodged with the Higher Administrative Court of the Free Hanseatic City of Hamburg within one month of service of this judgment.
Higher Administrative Court of the Free Hanseatic City of Bremen, Am Wall 198, 28195 Bremen, (day/night mailbox at the Justice Center Am Wall in the entrance area).
to file an appeal. The appeal must designate the judgment appealed against. The appeal must be substantiated within two months of service of this judgment. The statement of grounds must be submitted to the above-mentioned court. The statement of grounds shall state the fundamental importance of the case or indicate the decision from which the judgment departs or the procedural defect.
Representation is mandatory for the appeal proceedings; this also applies to the filing of the appeal and the statement of grounds. Accordingly, each party must be represented by a lawyer or a law teacher at a state or state-recognized university of a member state of the European Union, another state party to the Agreement on the European Economic Area or Switzerland who is qualified to hold judicial office. Legal entities under public law and public authorities may also be represented by civil servants or employees qualified to hold judicial office or by graduates in higher legal service.
Summoned. Prof. Sperlich signed. Dr. K. Koch signed Dr. N. Koch
Unofficial translation, original decision in German here https://lnkd.in/e7UFW-a4