1 The claimant, a Syrian national, challenges the rejection of his application for asylum as inadmissible.

2 The claimant arrived in Germany at the end of 2014, having previously been recognised as a refugee in Bulgaria by a decision of 11 November 2014. In February 2015, he filed another application for asylum in the federal territory. In a personal interview, he stated that he had entered the EU via Bulgaria, that he had not applied for or been granted asylum in any other country and that he wished to stay in Germany because this was his goal.

3 After the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter 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).

4 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 order. 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) of the Residence Act (AufenthG, Aufenthaltsgesetz) and section 29 (1) no. 2 of the Asylum Act (AsylG, Asylgesetz) would not preclude asylum procedures to be conducted in the federal territory since the asylum system in Bulgaria suffered from systemic deficiencies with regard to recognised refugees. Admittedly, (Qualification) Directive 2011/95/EU generally only promised equal treatment of nationals with regard to the conditions relating to subsistence for beneficiaries of protection. In order to achieve this, however, by taking into account the case-law of the European Court of Human Rights, an integration programme would be required which would have to be appropriately tailored and address the special needs of the persons concerned and which would in fact - and not just from a formal perspective - ensure equal treatment of nationals. Otherwise, beneficiaries of protection could submit a new request for protection in another Member State. It would be contrary to the system to declare the return of an asylum seeker to the Member State that is actually responsible as inadmissible because of systemic deficiencies, but to refuse to allow a refugee recognised there to undergo another asylum procedure in another Member State, thereby permanently depriving him or her of the rights of residence and to participation associated with the granting of refugee status. 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. This was the only way for him to benefit from the rights of residence and to participation to which he is entitled as a refugee.

5 The defendant's appeal on points of law contests this. The defendant claims that the arguments put forward regarding failure to meet minimum standards with regard to the living conditions of recognised beneficiaries of protection in Bulgaria did not justify an(other) asylum procedure, but had to be taken into account in the assessment of national bans on deportation and in the case of a deportation order, which was withdrawn in the present case.

6 The legal dispute is to be suspended. In accordance with article 276 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. These questions, which the referring Senate submitted to the Court of Justice by decision of today's date in another case - 1 C 2.17 -, concern the interpretation 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 version, OJ L 180 p. 60 - Directive 2013/32/EU) and/or its predecessor 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 - Directive 2005/85/EC) and the Charter of Fundamental Rights of the European Union (CFR). The referral is closely connected to another request for a preliminary ruling by the referring Senate's decision of 27 June 2017 - 1 C 26.16 - to clarify questions under EU law concerning secondary movement of recognised refugees. However, this referral differs from the latter mainly in that the form of international protection for recognised refugees in the Member State where the refugee was recognised (in this case: Bulgaria) may have even greater deficiencies. The referring Court suggests that the case be joined to this request for a preliminary ruling and asks the Court of Justice to treat both cases alike.

7 1. Under national law, the legal assessment of the claimant's request is based on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798) and the Residence Act in the version promulgated on 25 February 2008 (BGBl. I p. 162), both last amended with effect as from 29 July 2017 by the Act to Improve the Enforcement of the Obligation to Leave the Federal Territory (Gesetz zur besseren Durchsetzung der Ausreisepflicht) of 20 July 2017 (BGBl. I p. 2780). Since the present case concerns a dispute under asylum law, section 77 (1) first sentence AsylG stipulates that the current legal situation must be typically referred to unless a derogation is required for reasons of substantive law. This includes the recast version of section 29 (1) AsylG as amended during the court proceedings by the Integration Act (Integrationsgesetz) of 31 July 2016 (BGBl. I p. 1939) with effect as from 6 August 2016.

8 The following provisions of national law are hence the decisive legal framework for the legal dispute:

9 Section 29 AsylG
(1) An application for asylum shall be inadmissible if
(...)
2. another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2;
(...)

10 Section 35 AsylG
In the cases under section 29 (1) no. 2 and 4, the Federal Office shall warn the foreign national that he or she will be deported to the country where he or she was safe from persecution.

11 Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without oral hearing, it shall be based on the situation at the time the decision is taken. (...)

12 Section 25 AufenthG
(...)
(3) A foreign national should be granted a residence permit if a deportation ban applies pursuant to section 60 (5) or (7). The residence permit shall not be granted if departure for subsequent admission to another state is possible and reasonable or (...).
(...)

13 Section 60 AufenthG
(1) In application of the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559), a foreign national may not be deported to a state in which his or her life or liberty is under threat on account of his or her race, religion, nationality, membership of a certain social group or political convictions. This shall also apply to persons who are entitled to asylum and to foreign nationals who have been incontestably granted refugee status or who enjoy the legal status of foreign refugees on other grounds in the federal territory or who have been granted foreign refugee status outside of the federal territory in accordance with the Convention relating to the Status of Refugees. Where the foreign national cites the ban on deportation pursuant to this subsection, the Federal Office for Migration and Refugees shall establish in an asylum procedure whether the conditions stated in the first sentence apply and the foreign national is to be granted refugee status, except in cases covered by the second sentence. The decision by the Federal Office shall only be contestable subject to the provisions of the Asylum Act. (2) Foreign nationals may not be deported to a state where they face serious harm as referred to in section 4 (1) of the Asylum Act. Subsection 1 third and fourth sentences shall apply mutatis mutandis.
(...)
(5) A foreign national may not be deported if deportation is impermissible under the terms of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (BGBl. 1952 II p. 685).
(...)

14 Article 2 of the European Agreement on Transfer of Responsibility for Refugees of 16 October 1980 (BGBl. 1994 II p. 2646) Responsibility shall be considered to be transferred on the expiry of a period of two years of actual and continuous stay in the second State with the agreement of its authorities or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document.

15 This period of two years shall run from the date of admission of the refugee to the territory of the second State or, if such a date cannot be established, from the date on which he or she presents himself or herself to the authorities of the second State.

16 2. The questions referred are relevant for the decision and require clarification by the Court of Justice of the European Union.

17 2.1 According to section 29 (1) no. 2 AsylG, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG. Until section 29 (1) no. 2 AsylG entered into force in August 2016, the inadmissibility of asylum applications by foreign nationals who had been granted refugee status in another Member State was already based on section 60 (1) second sentence AufenthG (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 17 June 2014 - 10 C 7.13 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts), 150, 29 para. 29). The power to issue such a national regulation was already contained in article 25 (2) (a) of Directive 2005/85/EC. Article 33 (2) (a) of Directive 2013/32/EU meanwhile expanded this possibility to any form of granting international protection by another Member State. Consequently, the interpretation of the transitional provision in article 52 of Directive 2013/32/EU is not relevant to the admissibility of the application in the present case (see, in this regard, BVerwG, decision to request a preliminary ruling of 23 March 2017 - 1 C 17.16 - referred question 1).

18 The constituent elements of section 29 (1) no. 2 AsylG are satisfied. Bulgaria is a Member State of the EU. According to the findings of the Court of Appeal, the claimant was recognised there as a refugee. Bulgaria hence granted him international protection within the meaning of section 1 (1) no. 2 AsylG. However, the referring Court seeks clarification as to whether the application of section 29 (1) no. 2 AsylG to the present case is compatible with EU law. This depends on whether the authorisation in article 33 (2) (a) of Directive 2013/32/EU and/or article 25 (2) (a) of Directive 2005/85/EC is restricted by other EU law provisions (specifically article 4 CFR and article 20 et seqq. of Directive 2011/95/EU) (see BVerwG, decision to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - referred questions 1 and 2). In this regard, the referring Court's questions seek general clarification as to whether and under what conditions a refugee recognised in one Member State (in this case: Bulgaria), as an exception, is entitled to another recognition procedure in another Member State (in this case: Germany).

19 The questions referred for a preliminary ruling are relevant for the decision. It is true that under national law the claimant is not entitled to have the defendant obligated to conduct an asylum procedure, as pronounced by the Court of Appeal, simply because the rejection of an asylum application as inadmissible can only be challenged by means of an action for annulment and because the Federal Office must automatically continue the asylum procedure following judicial annulment of an inadmissibility decision (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 - (...) para. 16 et seqq. and of 1 June 2017 - 1 C 9.17 - (...) para. 14 et seq.) If EU law does not preclude the application of section 29 (1) no. 2 AsylG - irrespective of the form of international protection, in particular, the living conditions for recognised refugees, in the Member State in which refugee recognition is granted (here: Bulgaria) - the Court of Appeal would have been obliged to dismiss the claimant's appeal on points of fact and law also with regard to the request for cassation (Kassationsbegehren) of the annulment of the inadmissibility decision that was included 'as a minus' in the request to conduct an asylum procedure. If EU law does not allow the asylum application of a refugee recognised in another Member State to be rejected in certain constellations, the inadmissibility decision in the judicial proceedings is subject to annulment if such an exceptional case exists.

20 a) By way of derogation from referred question 1 in the referring Court's decision to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - it is not only necessary in the present proceedings to ascertain whether it is sufficient for a new recognition procedure that the implementation of international protection, in particular, the living conditions for recognised refugees, in the Member State which has already granted the applicant international protection (in this case: Bulgaria) does not satisfy the requirements of article 20 et seqq. of Directive 2011/95/EU (referred question 1a). The question also arises as to how to proceed if the living conditions for recognised refugees threaten to infringe article 4 CFR and/or article 3 ECHR (referred question 1b). The case-law of the Court of Justice has clarified that deportation to a country where the living conditions of a beneficiary of protection are equivalent to inhuman or degrading treatment within the meaning of article 4 CRC and/or article 3 ECHR is ruled out (see, most recently CJEU, judgment of 16 February 2017 - C 578/16 PPU [ECLI:EU:C:2017:127] - para. 59 et seqq.) However, this does not mean that the Member State in which the applicant is staying must, under these conditions, assess the merits of an(other) asylum application and, if applicable, recognise the applicant as a refugee again.

21 According to the findings of the Court of Appeal, the asylum system in Bulgaria suffers from systemic deficiencies because 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 (printed judgment p. 17). The reasons of the judgment also contain indications that the return of refugees to Bulgaria might be a breach of article 4 CFR and/or article 3 ECHR. According to the sources of information consulted by the Court of Appeal, refugees do not have the right to accommodation after their recognition in Bulgaria and have no real chance to build up a minimum subsistence level for themselves. They did not meet the requirements for accommodation in a municipal homeless shelter or social housing. Without a home they did not receive a residence registration certificate, which made it difficult to issue a Bulgarian identity document. In practice, they had no access to state or medical benefits and could not exercise their rights (see printed judgment p. 13 et seqq.). However, the Court of Appeal did not make a final assessment of the facts with regard to an infringement of article 4 CFR and/or article 3 ECHR in the event of the applicant's return to Bulgaria, so that the referring Court - if the admissibility of the asylum application were to depend on this threshold - would have to refer the case back to the Court of Appeal for final clarification of the living conditions for recognised refugees in Bulgaria.

22 aa) The referring Court is of the opinion that referred question 1 must be answered in the negative, at least as long as the living conditions in the Member State in which the refugee is recognised do not breach article 4 CFR and/or article 3 ECHR (see BVerwG, decision to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - para. 32 et seqq.) If the refugee is not at risk of inhuman or degrading treatment in the Member State where he or she was recognised as a refugee, it is possible and reasonable for him or her to return there and claim, if necessary, with the help of the courts, the rights and privileges of refugee recognition from the Member State which assumed responsibility for providing international protection by recognising him or her as a refugee. In this constellation, there is obviously no need either to repeat an asylum procedure in another Member State or to extend the interpretation of the residence and social law provisions applicable to recognised refugees in that Member State in conformity with EU law.

23 A right to another asylum procedure even below the threshold defined by article 4 CFR and article 3 ECHR would undermine the Common European Asylum System and the mutual trust underlying this system. According to the case-law of the Court of Justice - codified in the Dublin III Regulation - only systemic weaknesses which entail the risk of inhuman or degrading treatment within the meaning of article 4 CFR are relevant in the Dublin procedure as well (see article 3 (2) second subparagraph of the Dublin III Regulation). With regard to recognised refugees, a further lowering of this threshold would facilitate the secondary movement of beneficiaries of protection, which has already reached substantial levels, as well as the so-called "asylum shopping", the prevention of which is one of the aims of the Common European Asylum System. The provisions of Directive 2011/95/EU for the form of international protection grant refugees subsistence benefits that do not exceed the extent to which Member States grant such benefits to their own nationals (see articles 27, 29 (1) and 30 of Directive 2011/95/EU). Furthermore, the level of state benefits and the offering of integration facilities (article 34 of Directive 2011/95/EU) varies strongly between the individual Member States. In this respect, the EU legislature refrained from standardisation, even for recognised refugees. This means that EU law can, at best, require the assessment of an application for repeated granting of refugee status in another Member State despite the inadmissibility under the national law of that state if the living conditions in the Member State which granted the applicant refugee status infringe article 4 CFR and/or article 3 ECHR (regarding the above-described issues, see also VGH Mannheim, decision to request a preliminary ruling of 15 March 2017 - A 11 S 2151/16 - referred question 3).

24 bb) The referring Court is also of the opinion that, even in the event of a threatening infringement of article 4 CFR and/or article 3 ECHR, there is no need to conduct another asylum procedure in another Member State. An alternative to this is a solution based on residence law which ultimately grants to a refugee recognised in another Member State the rights pursuant to article 20 et seqq. of Directive 2011/95/EU or at least a secured legal status which rules out an infringement of article 4 CFR and/or article 3 ECHR without performing a new recognition procedure in the Member State of stay as long as he or she cannot be reasonably expected to return to the other Member State. In section 60 (1) second sentence AufenthG, the German legislature made use of the option allowed - albeit not mandatory - under international and EU law to grant limited legal effect to recognition decisions by other countries even in Germany. Pursuant to this, the ban on deportation to the state where the refugee is persecuted pursuant to section 60 (1) second sentence AufenthG is also applicable to foreign recognitions of refugee status (BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 29). If (in an exceptional case) the foreign national is at risk of inhuman or degrading treatment within the meaning of article 4 CFR/article 3 ECHR in the state where he was recognised as a refugee, deportation of the refugee to such state is also impermissible (section 60 (5) AufenthG). If a national ban on deportation exists pursuant to section 60 (5) AufenthG the foreign national "should" be granted a (humanitarian) residence permit pursuant to section 25 (3) first sentence AufenthG by the foreigners authority if it is not possible for the foreign national or if the foreign national cannot be reasonably expected to leave for another country. In this way, a foreign national who was recognised in another Member State can lawfully stay in Germany even without another asylum procedure and enjoy the integration rights related thereto. The holder of a residence permit pursuant to section 25 (3) first sentence AufenthG does not automatically have access to all rights granted to a recognised refugee in article 20 et seqq. of Directive 2011/95/EU. However, article 2 of the European Agreement on Transfer of Responsibility for Refugees of 16 October 1980, which was ratified by Germany, is applicable to a refugee recognised by another Member State. Pursuant to this article, responsibility for a refugee is transferred to Germany on the expiry of a period of two years of "actual and continuous stay" or earlier in the federal territory. This means that a refugee recognised in another Member State can fully enjoy the rights associated with refugee recognition even without having to undergo another asylum procedure in Germany and does not - as the Court of Appeal assumed - permanently retain the status of a foreign national whose deportation is temporarily suspended, to the exclusion of the rights of residence and participation to which a recognised refugee is entitled.

25 But even if it were to be assumed from an obligation under EU law that all Member States must ensure that a refugee recognised in a Member State may not, even temporarily, be deprived of the rights and privileges connected to this status, there would not necessarily be a need for another asylum procedure in another Member State in cases where a Member State failed to fulfil the responsibility assumed by recognising the refugee. Instead, other options would be available to effectively address this concern. For example, as long as a refugee cannot reasonably be expected to return to the Member State which recognised him or her as a refugee, he or she could be treated in the Member State of stay, in whole or in part, as a refugee recognised there, by way of interpreting national residence and social law in conformity with EU law. However, complete assumption of the obligations under article 22 et seqq. of Directive 2011/95/EU can lead to a de facto improvement in the situation if the level of state benefits as well as the offering of integration facilities (article 34 of Directive 2011/95/EU) is higher in the Member State of stay than in the Member State of refugee recognition. The Member State of stay may therefore consider whether it could also facilitate the conditions for returning to the Member State of refugee recognition by providing the refugee, by way of an advance payment, with the financial means necessary to secure temporarily the minimum subsistence level of the refugee in the event of return and up until enforcement, if necessary by judicial means, of the rights and privileges linked to his or her refugee recognition, taking into account the general living conditions in that Member State. Compared to the performance of a new recognition procedure, the advantage of both options would be that the refugee recognised in a Member State might be better off, but in any case no worse off, than he or she would be if the Member State which granted refugee recognition and thereby assumed responsibility for granting international protection were to comply with the related obligations under EU law. Furthermore, this would also consider the fact that the Common European Asylum System is based on the principle that an asylum application is assessed by a single Member State (article 3 (1) second sentence of the Dublin III Regulation). This is to prevent not only multiple recognition, but also diverging decisions within the European Union including all related undesired consequences under EU law - which cannot be ruled out when an asylum procedure is repeated.

26 b) For this reason, the Senate also has reservations about an (unqualified) affirmative answer to referred question 2: With question 2, which is divided into two variants, the referring Court seeks further clarification should referred question 1 be answered in the affirmative.

27 Referred question 2a serves to clarify whether it can also be argued against the inadmissibility of a new asylum procedure that recognised refugees in the Member State where they were recognised as refugees (in this case: Bulgaria) do not receive any subsistence benefits at all, or that those which they do receive are very limited by comparison with those available in other Member States, but that these refugees are in principle not treated any differently from nationals of that Member State. The purpose is to ascertain whether recognised refugees are entitled to a minimum standard that goes beyond formal equal treatment with that Member State's own nationals (see BVerwG, decision to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - para. 36).

28 Referred question 2b serves to clarify whether it can also be argued against the inadmissibility of a new asylum procedure that recognised refugees in the Member State where they were recognised as refugees (in this case: Bulgaria) may, admittedly, be granted the rights provided for under article 20 et seqq. of Directive 2011/95/EU from a formal point of view, but in fact have greater difficulty in accessing the related benefits and there is no integration programme appropriately tailored and addressing the special needs of the persons concerned such as to ensure de facto equal treatment to that of the Member State's nationals.

29 The Court of Appeal assessed the sources of information at its disposal to the effect that the asylum system in Bulgaria suffers from systemic deficiencies with regard to refugees who have already been recognised. The reason given was that Bulgaria fundamentally failed to fulfil its obligations under article 20 et seqq. of Directive 2011/95/EU. However, it is not apparent from the Court's findings as to the facts that Bulgaria from a formal point of view denies recognised refugees the rights to which they are entitled under Directive 2011/95/EU. The Court of Appeal bases its assessment primarily on the factual difficulties of access (printed judgment p. 14 et seqq.) and the lack of a functioning and adequately funded integration programme (printed judgment p. 17). The Court of Justice is therefore requested to clarify whether these aspects are relevant for answering the question of commencing a new asylum procedure.

30 The provisions of Directive 2011/95/EU regarding the form of international protection do not set any specific (minimum) standards with regard to the conditions relating to subsistence for beneficiaries of international protection, but promise at best equal treatment with nationals with regard to subsistence benefits to be granted to recognised refugees (see articles 27, 29 (1), 30 and 32 of Directive 2011/95/EU). Pursuant to article 34 of Directive 2011/95/EU, Member States have to guarantee international beneficiaries of protection access to the integration programmes they have set up. However, article 34 also leaves considerable scope for action to Member States to establish such integration programmes ("integration programmes which [Member States] consider to be appropriate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status"; French: "qu'ils jugent appropriés"). The referring Court is of the opinion that this implies that the mere absence of an appropriately tailored integration programme which does justice to the special needs of the group of people to be considered here does not oblige another Member State under EU law - contrary to the inadmissibility of assessing such applications under national law - to carry out another asylum procedure (regarding the issues described above, see VGH Mannheim, decision to request a preliminary ruling of 15 March 2017 - A 11 S 2151/16 - referred question 3).

31 2.2 However, the question additionally raised in the decision to request a preliminary ruling of the referring Court of 27 June 2017 - 1 C 26.16 - regarding the consequences of the failure to conduct a personal interview with the foreign national on the intended inadmissibility decision by the Federal Office does not arise in the present proceedings. The reason being that, when the claimant filed his asylum application on 19 February 2015, he was expressly questioned by the Federal Office during a personal interview regarding his travel route, the application for or granting of asylum in another country and possible reasons which might prevent him from being returned to another country; furthermore, he was given a questionnaire in which he was given the opportunity to explain the reasons for his request for protection in Germany in an expedited, written procedure. The referring Court is of the opinion that this satisfies both the requirements of article 12 (1) in conjunction with (2) first sentence (b) of Directive 2005/85/EC and article 14 (1) in conjunction with article 34 (1) of Directive 2013/32/EU. In particular, the claimant was given sufficient opportunity to comment on the circumstances relevant to the subsequent inadmissibility decision. The fact that he admitted his entry via Bulgaria, but untruthfully concealed his refugee recognition in Bulgaria and failed to give any reasons that could prevent his return to Bulgaria, does not mean that the Federal Office, after having obtained knowledge of refugee recognition in Bulgaria by other means, should have heard the claimant again. If the Court of Justice were not to share that assessment, referred question 3 in the decision to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - would also arise in the present case.

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.