The claimant, a Syrian national born in 1996, requests to obligate the defendant to conduct an asylum procedure.

The claimant was granted refugee status in Bulgaria in November 2014. At the end of 2014 he travelled onwards to Germany, and in February 2015 he filed a new asylum application with the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office). After the Federal Office became aware of the Bulgarian recognition as a refugee when its request to take the applicant back failed, it rejected the claimant's asylum application as inadmissible by notice of 6 May 2015 (no. 1) and issued a warning to deport the claimant to Bulgaria (no. 2).

The Administrative Court (Verwaltungsgericht) dismissed the action against this notice in its judgment of 9 February 2016. In the appeal proceedings on points of fact and law, the Federal Office withdrew the deportation warning. Following partial discontinuance of the proceedings, the Higher Administrative Court (VGH, Verwaltungsgerichtshof), in its judgment of 4 November 2016, set aside the inadmissibility decision in no. 1 of the notice and ordered the defendant to conduct an asylum procedure. As reasoning, it stated that, if interpreted in conformity with EU law and human rights, section 60 (1) third sentence of the Residence Act (AufenthG, Aufenthaltsgesetz) and the inadmissibility provisions under section 29 (1) of the Asylum Act (AsylG, Asylgesetz) would not preclude another asylum procedure to be conducted in the federal territory if elementary rights of the beneficiaries of protection that proceed in particular from Chapter VII of the (Qualification) Directive 2011/95/EU could not be guaranteed in the Member State of (first) recognition, owing to systemic deficiencies in that country's asylum system. If a refugee could not return to the Member State that is actually responsible because living conditions for refugees there breach the minimum standards of the Common European Asylum System and article 4 of the Charter of Fundamental Rights of the European Union (CFR), then the refugee must be enabled to undergo another procedure for the granting of refugee status in the federal territory, since this would be the only way for him or her to benefit from rights of residence and to participation to which he is entitled as a refugee. Bulgaria fundamentally infringed its obligations under article 20 et seqq. of Directive 2011/95/EU. A functioning and adequately funded integration programme for recognised beneficiaries of protection was still lacking. Since it was not possible to deport the claimant to either Syria or Bulgaria, it was necessary to enable him to undergo an asylum procedure in Germany.

The defendant's appeal on points of law contests this.

By decisions of 2 August 2017 and 24 April 2019 - BVerwG 1 C 37.16 - the Senate suspended the proceedings and requested a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) on the interpretation of the authorisation under article 33 (2) (a) of Directive 2013/32/EU and the rule in article 25 (2) (a) of Directive 2005/85/EC that preceded it, as well as on article 4 CFR. The Court of Justice decided these questions by judgment of 19 March 2019 - C-297/17 et al. [ECLI:EU:C:2019:219], Ibrahim et al. - and in the decision of 13 November 2019 issued in the present proceedings - C-540/17 et al. [ECLI:EU:C:2019: 964], Hamed et al. -.

In the continued proceedings on the appeal on points of law, the defendant essentially argues as follows: Concerning inadmissibility decisions under section 29 (1) AsylG, (only) an action for annulment (Anfechtungsklage) was admissible; therefore, the Court of Appeal would at most have been permitted to annul the Federal Office's decision. Moreover, according to the clarification by the Court of Justice, the mere absence of an integration programme in the Member State that granted international protection did not expose beneficiaries of protection to a situation that is incompatible with article 4 CFR. Deficiencies breached the prohibition of inhuman or degrading treatment only if they attain a "particularly high level of severity". This would depend on all circumstances of the case, including the personal possibilities of the beneficiary of protection. As the Court of Appeal made no specific findings on this point, the legal dispute must be remitted to that Court.

The claimant defends the decision of the Court of Appeal.

8 The defendant's appeal on points of law, on which the Senate, with the parties' consent, decides without an oral hearing (section 101 (2) in conjunction with section 141 first sentence and section 125 (1) first sentence of the Code of Administrative Court Procedure [VwGO, Verwaltungsgerichtsordnung]), is well-founded. Insofar as the Court of Appeal obligated the defendant to conduct an asylum procedure, the judgment is founded on a breach of federal law, if only because the action is inadmissible in that respect (1.). Moreover, with regard to the request for cassation (Kassationsbegehren) that is included 'as a minus' in the claimant's request to have the defendant obligated to conduct an asylum procedure, the assumption of the Court of Appeal that the inadmissibility decision contained in no.1 of the notice of 6 May 2015 was contrary to (EU) law simply because the asylum system in Bulgaria suffered from systemic deficiencies with regard to recognised refugees, and Bulgaria fundamentally failed to fulfil its obligations under article 20 et seqq. of Directive 2011/95/EU, and has still not established and is still not practising a functioning and adequately funded integration programme for recognised beneficiaries of protection is not compatible with federal law (2.). The Senate cannot conclusively decide whether the appeal judgment insofar proves to be correct for other reasons (section 144 (4) VwGO) (3.). Therefore, the legal dispute must be remitted to the Court of Appeal for further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO).

9 The legal assessment of the claimant's request is governed by the Asylum Act (AsylG), in its latest version (currently: in the version promulgated on 2 September 2008 <Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798>, last amended by the Second Act Adjusting Data Protection Law to Regulation (EU) 2016/679 and Transposing Directive (EU) 2016/680 (Zweites Gesetz zur Anpassung des Datenschutzrechts an die Verordnung (EU) 2016/679 und zur Umsetzung der Richtlinie (EU) 2016/680) of 20 November 2019, which entered into force on 26 November 2019 <BGBl. I p. 1626>). Changes in the law occurring after the last oral hearing or the decision of the court responsible for finding the facts must be taken into consideration in appeal proceedings on points of law if they had to be considered by the court responsible for finding the facts - if it were to decide instead of the court deciding on appeals on points of law (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 11 September 2007 - 10 C 8.07 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 129, 251 para. 19). Since the present case concerns a dispute under asylum law where the court responsible for finding the facts regularly had to refer to the factual and legal situation at the time of the last oral hearing or the decision pursuant to section 77 (1) AsylG, it would have to base a decision on the latest version if it were to decide on the matter now, unless a derogation is required for reasons of substantive law or EU law with primacy (established jurisprudence, see BVerwG, judgment of 20 February 2013 - 10 C 23.12 - BVerwGE 146, 67 para. 12). Hence, the recast version of section 29 AsylG, as created during the proceedings on the appeal on points of fact and law by the Integration Act (Integrationsgesetz) of 31 July 2016 (BGBl. I p. 1939) as of 6 August 2016 applies.

10 1. The claimant's request to have the defendant obligated to conduct an asylum procedure cannot be successful, if only because a rejection of an asylum application as inadmissible - at any event since the Integration Act entered into force - can only be challenged by means of an action for annulment; after a judicial annulment of an inadmissibility decision, the Federal Office must automatically continue the asylum procedure (regarding the admissible type of action in the case of inadmissibility decisions after the entry into force of the Integration Act, see BVerwG, judgments of 14 December 2016 - 1 C 4.16 - BVerwGE 157, 18 para. 16 et seq. and of 1 June 2017 - 1 C 9.17 - (...)).

11 2. Also with regard to the request for cassation concerning the inadmissibility decision that is included 'as a minus' in the request to have the defendant obligated to conduct an asylum procedure, the assumption of the Court of Appeal that a refugee recognised in another Member State can be enabled to undergo another asylum procedure in the federal territory simply because elementary rights of the beneficiaries of protection under article 20 et seqq. of Directive 2011/95/EU could not be guaranteed due to systemic deficiencies in the Member State of (first) recognition is not compatible with federal law.

12 a) Since the Integration Act entered into force in August 2016, the Federal Office's rejection of the asylum application as inadmissible, on the grounds that refugee status had already been granted in Bulgaria, has had its legal basis in section 29 (1) no. 2 AsylG. According to this provision, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection. With this provision - which entered into force during the appeal proceedings - the national legislature exercised the (expanded) authorisation under 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 (recast, OJ L 180 p. 60). Even before that, under article 25 (2) (a) of the (predecessor) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ L 326 p. 13), a Member State could reject an application for asylum as inadmissible if another Member State had granted refugee status, as is the case here.

13 b) In formal terms, an interview was held that meets the requirements of section 29 (2) first sentence AsylG, which currently applies. According to that provision, the Federal Office must interview the foreign national in person with regard to the grounds stipulated in section 29 (1) no. 1 (b) to no. 4 before it decides on the admissibility of the asylum application. This provision implements article 34 (1) of Directive 2013/32/EU, which requires Member States to allow applicants to present their views with regard to the application of the grounds referred to in article 33 of the Directive in their particular circumstances before the determining authority decides on the admissibility of an application for international protection. To that end, Member States are to conduct a personal interview on the admissibility of the application. That was done here. It is true that the Court of Appeal did not make any findings on this point. The Senate may, however, independently evaluate the "minutes of the personal conversation to determine the responsible Member State for conducting the asylum procedure on 19 February 2015", which is contained in the files of the administration and the recorded course of which is not disputed by any of the parties. The Court of Appeal has not made any factual findings to the contrary, which would in principle be binding on the Court deciding on appeals on points of law pursuant to section 137 (2) VwGO (see BVerwG, judgment of 21 November 2017 - 1 C 39.16 - BVerwGE 161, 1 para. 35). On the basis of that minutes, the claimant was in substance also interviewed to the required extent on an inadmissibility decision on grounds that protection had been granted elsewhere.

14 c) In substantive terms, the claimant meets the (written) constituent elements for an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG. According to the factual findings of the lower court, which are not challenged by procedural complaints and are therefore binding on the Senate pursuant to section 137 (2) VwGO, the claimant was granted refugee protection in Bulgaria before continuing his journey to Germany, and therefore received international protection within the meaning of section 1 (1) no. 2 AsylG. However, not compatible with federal law is the assumption of the Court of Appeal that this inadmissibility ground did not apply here simply because the asylum system in Bulgaria suffered from systemic deficiencies with regard to recognised refugees, and Bulgaria failed to fulfil its obligations under article 20 et seqq. of Directive 2011/95/EU towards beneficiaries of international protection. With that reasoning, the Court of Appeal falls short of the high level of article 4 CFR, which must be exceeded before an inadmissibility decision is contrary to (EU) law pursuant to section 29 (1) no. 2 AsylG.

15 If the written requirements of section 29 (1) no. 2 AsylG are met, an inadmissibility decision under this provision may nevertheless be exceptionally precluded under the case law of the Court of Justice for reasons of EU law having primacy. This is the case where the living conditions which would await the applicant and/or claimant as a recognised beneficiary of protection in the other Member State would expose him or her to a serious risk of suffering inhuman or degrading treatment within the meaning of article 4 CFR. Under those conditions, Member States are prevented from exercising the authority granted by article 33 (2) (a) of Directive 2013/32/EU to reject an application for international protection as inadmissible (see, expressly, CJEU, decision of 13 November 2019 - C-540/17 et al., Hamed et al. - para. 35; see also judgment of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 88). It is thus clarified that breaches of article 4 CFR in the Member State where protection is otherwise granted must not only be taken into account when reviewing the lawfulness of a deportation warning but already result in the unlawfulness of the inadmissibility decision.

16 Article 33 (2) (a) of Directive 2013/32/EU does not, however, preclude a Member State from exercising the authority granted by that provision to reject an asylum application as inadmissible if the applicant would not be exposed, in the Member State that granted the applicant international protection, to a serious risk of suffering inhuman or degrading treatment within the meaning of article 4 CFR due to the living conditions which he or she could be expected to encounter as a beneficiary of international protection. The mere fact that the living conditions in the Member State which granted international protection do not comply with the provisions of Chapter VII of the Qualification Directive does not, in view of the fundamental importance of the principle of mutual trust, prevent the Member State from exercising the authority granted by article 33 (2) (a) of Directive 2013/32/EU as long as the severity level of article 4 CFR is not attained. Rather, save in exceptional circumstances, each Member State may consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. In the context of the Common European Asylum System, this presumption also pertains to the application of article 33 (2) (a) of Directive 2013/32/EU. Infringements of provisions of Chapter VII of the Qualification Directive which do not result in a breach of article 4 CFR therefore do not prevent the Member States from exercising the authority granted by article 33 (2) (a) of Directive 2013/32/EU. The same applies if the beneficiary of protection does not receive, in the Member State that granted international protection, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though the beneficiary of protection is not treated differently from the nationals of that Member State and is not exposed to a serious risk of treatment that would breach article 4 CFR (CJEU, judgment of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 83 et seqq. and decision of 13 November 2019 - C-540/17 et al., Hamed et al. - para. 34). Systemic deficiencies in the asylum procedure itself may indeed justify infringement proceedings against the Member State concerned, but do not restrict the other Member States' authority to reject a new application as inadmissible (CJEU, judgment of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 95-100).

17 The situation is different only if in practice, the Common European Asylum System experiences major operational problems in the Member State that has granted international protection, and a person would thus in fact be exposed to a serious risk of inhuman or degrading treatment within the meaning of article 4 CFR. In such cases, another Member State cannot invoke article 33 (2) (a) of Directive 2013/32/EU to reject a new application for international protection as inadmissible. The Court of Justice founded this restriction of the authority to reject an asylum application as inadmissible, as contained in article 33 (2) (a) of Directive 2013/32/EU, on grounds of the general and absolute nature of the prohibition laid down in article 4 CFR, which is closely linked to respect for human dignity and which prohibits, without any possibility of derogation, inhuman or degrading treatment in whatever form, irrespective of whether such treatment occurs at the time of transfer, in the course of the asylum procedure, or on the conclusion of that procedure (CJEU, judgment of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 86 et seqq.). Nor is any other interpretation of article 33 (2) (a) of Directive 2013/32/EU permitted by the mere fact that in these cases the person concerned cannot be deported anyway under national law, in combination with the possibility of a residence permit on humanitarian grounds and the grant of rights and privileges to cover the person's basic needs (CJEU, decision of 13 November 2019 - C-540/17 et al., Hamed et al. - para. 40).

18 3. For lack of an adequate assessment of the living conditions in Bulgaria by the court responsible for finding the facts, the Senate cannot conclusively decide whether the appeal judgment proves to be correct for other reasons (section 144 (4) VwGO), on the grounds that applying the high level of severity established by the Court of Justice, upon his return to Bulgaria the claimant, as a recognised refugee, would be at risk of an infringement of article 4 CFR.

19 a) In response to the request by the Senate, the Court of Justice has, in the "Ibrahim" judgment - based on the "Jawo" judgment of the same day - specified in more detail the standard for an infringement of article 4 CFR by the living conditions in the country granting protection. According to this, deficiencies, which may be systemic or generalised or which may affect certain groups of people, are to fall within the scope of article 4 CFR if they attain a particularly high level of severity, which depends on all the circumstances of the case and which would be attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself or herself, irrespective of his or her wishes and his or her personal choices, in a situation of extreme material poverty that does not allow him or her to meet his or her most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity. That level cannot therefore cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment (see CJEU, judgments of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 89-91 and - C-163/17 [ECLI:EU:C:2019:218], Jawo - para. 91-93 and decision of 13 November 2019 - C-540/17 et al., Hamed et al. - para. 39).

20 b) The Court of Appeal did not examine, by taking the particularly high level of severity required by the Court of Justice as a basis, whether the claimant, as a recognised refugee, was in fact at risk of inhuman or degrading treatment upon return to Bulgaria within the meaning of article 4 CFR due to systemic or generalised deficiencies, or deficiencies at least affecting certain groups of people. To that extent, there has been no conclusive assessment of the living conditions in Bulgaria for recognised beneficiaries of protection by the court responsible for finding the facts. It is true that the Court of Appeal explained how conditions in Bulgaria for recognised refugees appear in the sources of information available to the Court (printed judgment p. 13 et seq.). However, from those sources of information whose content is reproduced, as the court responsible for finding the facts the Court of Appeal only concluded that Bulgaria fundamentally infringed its obligations under article 20 et seqq. of Directive 2013/32/EU, and had still not established and was still not practising a functioning and adequately funded integration programme for recognised beneficiaries of protection (printed judgment p. 17). It therefore lacks a conclusive assessment by the court responsible for finding the facts on the basis of the high level of severity established by the Court of Justice for inhuman or degrading inhuman treatment within the meaning of article 4 CFR.

21 4. After remittal, the Court of Appeal will have to rectify this omission on the basis of the status of information at that time. This is a task for the court responsible for finding the facts, where on the basis of information that is objective, reliable, specific and properly updated, and having regard to the standard of protection of fundamental rights guaranteed by EU law, an assessment must be made of whether, in Bulgaria, there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, that would expose the claimant in particular, as a recognised refugee, to the risk of extreme material poverty infringing article 4 CFR (see CJEU, judgment of 19 March 2019 - C-297/17 et al., Ibrahim et al. - para. 88 et seq., decision of 13 November 2019 - C-540/17 et al., Hamed et al. - para. 38). In its assessment, the Court must take into account, with regard to the living conditions for recognised refugees, that Bulgaria is one of the Member States where the question of a situation of extreme material poverty in breach of article 4 CFR is regularly addressed in the jurisprudence of the courts responsible for finding the facts at least in some detail, although, since the Court of Justice's "Ibrahim" and "Jawo" judgments have become known, the result has regularly been that the high severity level required was not met (...).

22 5. Insofar as the appeal on points of law results in an amendment of the appeal judgment, the decision on costs is founded on section 154 (1) VwGO. With regard to all other aspects, the decision on costs is reserved for the final decision. The value of the matter proceeds from section 30 of the Act on the Remuneration of Attorneys (RVG, Rechtsanwaltsvergütungsgesetz). There are no reasons for a derogation under section 30 (2) RVG.