Judgment of 26 February 2019 -
BVerwG 1 C 30.17ECLI:DE:BVerwG:2019:260219U1C30.17.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 26 February 2019 - 1 C 30.17 - para. 16.
Ineffective withdrawal of asylum application in Dublin procedure
1. An applicant who files an application for protection asserting risks relating to the country of destination which by their nature are objectively capable of establishing a recognition of entitlement to asylum or a grant of international protection (substantive asylum application within the meaning of section 13 (1) AsylG) must be referred to the asylum procedure conducted by the Federal Office. The applicant has no option of choosing between an assessment by the foreigners authority and an assessment by the Federal Office (confirmation of the jurisprudence on section 13 (1) AsylVfG, old version, see BVerwG, judgment of 9 June 2009 - 1 C 11.08 - BVerwGE 134, 124 para. 34).
2. If an asylum applicant withdraws an application for international protection while maintaining an application for a declaration on the existence of national deportation bans under section 60 (5) and (7) first sentence AufenthG, the effectiveness of the withdrawal presupposes a statement that the still-maintained request for protection from deportation is not founded on reasons that are covered by international protection (refugee and subsidiary protection).
3. The effectiveness of the withdrawal of an asylum application is to be decided, for purposes of the Dublin procedure, by the Member State that conducts that procedure, in accordance with the national laws of that state.
Sources of law
Asylum Act AsylG, Asylgesetz section 1 (1) no. 2, sections 3c, 4, 13 (1) and (2), 14, 29 (1) no. 1 (a), sections 31 (3), 32, 34a Residence Act AufenthG, Aufenthaltsgesetz sections 60 (5) and (7), 72 (2) Dublin III Regulation articles 2 (b) and (e), 3 (2), 7 (2), 12 (2), 18 (1) (a), 21, 22, 27 (3) (c), 29 (1) and (2), 49 Directive 2013/32/EU article 2 (b) Code of Administrative Court Procedure VwGO, Verwaltungsgerichtsordnung sections 80 (5), 80b
Summary of the facts
The claimants challenge the refusal, on grounds of inadmissibility, of their applications for asylum, as well as their deportation order to Austria.
The claimants, a family of Iranian nationality, entered the Federal Republic of Germany under Schengen visas in September 2014 and applied for asylum. The visas had been issued by the Austrian embassy in Tehran.
On 14 October 2014, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) submitted to the Republic of Austria a request to take charge under Regulation (EU) No 604/2013 of the European Parliament and of the Council (Dublin III Regulation). In a letter dated 29 October 2014, the Austrian authorities declared that they were responsible for processing the asylum applications pursuant to article 12 (2) of the Dublin III Regulation.
In a notice dated 30 October 2014, the Federal Office refused the asylum applications as inadmissible pursuant to section 27a of the Asylum Procedure Act (AsylVfG, Asylverfahrensgesetz), old version, on grounds that international responsibility lay elsewhere, and ordered the claimants deported to Austria. The claimants filed an action in due time against this decision and applied for a grant of interim protection. In a letter from their lawyer to the Federal Office, dated 28 November 2014, the claimants made the following statement: "My clients' asylum application is hereby limited to the request for a declaration on the existence of a deportation ban pursuant to section 60 (5) and section 60 (7) first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz). With regard to all other aspects, the asylum application is withdrawn." In support of their request for legal protection, the claimants asserted that inasmuch as now no asylum applications within the meaning of the Dublin III Regulation had been submitted, that Regulation was no longer applicable.
The Administrative Court (Verwaltungsgericht) refused the grant of interim protection, and also dismissed the action in a judgment of 17 February 2015. The Court held that it was not even evident that the claimants had effectively limited their request for protection to the existence of national deportation bans. Regardless of that aspect, the Court ruled, in any event the withdrawal had no effect on the responsibilities already established under the Dublin III Regulation, if - as is the case here - the withdrawal was declared only after the other Member State had agreed to take charge.
In a decision of 9 June 2015, amending the Administrative Court's refusing decision, the Higher Administrative Court (Oberverwaltungsgericht) ordered the suspensive effect of the action. By judgment of 30 January 2017, the Higher Administrative Court dismissed the appeal on points of fact and law. In its reasons, it held in substance that the Republic of Austria's responsibility for the claimants' asylum procedures had not subsequently been transferred to Germany. The six-month time limit for a transfer had not yet elapsed. Austria was still responsible, the Court of Appeal found, even after the claimants' statement that they were withdrawing their asylum applications and limiting them to national protection from deportation. The Court ruled that the obligation to take charge under article 18 (1) (a) of the Dublin III Regulation is not conditional on an application which was not withdrawn later. The withdrawal had not rendered the Dublin III Regulation inapplicable, because that withdrawal took place only after Austria's responsibility had become bindingly established through its agreement to take charge. The Court reasoned that the main purpose of the Dublin system can still be achieved in such a case because the responsible Member State has to decide, on the basis of its own legal system, on the effectiveness of the withdrawal and to bring the asylum procedure to an end by a final decision. The Dublin system would be circumvented if an applicant were still able to influence responsibility by declaring a withdrawal even after responsibility had already been established - constitutively - by a declaration of agreement to take charge. The Court held that the Dublin III Regulation's amendments compared to the Dublin II Regulation - particularly the expansion of the possibilities for obtaining legal protection which, according to the case-law of the Court of Justice of the European Union (CJEU), go hand in hand with the Dublin III Regulation - do not affect the present situation. In view of all the foregoing, it was irrelevant whether the claimants' withdrawal of their asylum applications had taken place effectively under German law.
In their appeal on points of law, the claimants complain of a violation of section 29 (1) no. 1 (a) and section 34a (1) of the Asylum Act (AsylG, Asylgesetz). They argue that the challenged notice is unlawful because the Dublin III Regulation no longer applies, owing to the withdrawal of the applications for international protection. The Dublin III Regulation, they contend, does not contain an explicit regulation of the consequences of such a withdrawal. In view of the clear requirement of article 1 of the Dublin III Regulation, it is inconsistent with the Regulation's main purpose to remit decisions like the one on the effectiveness of a withdrawal to the requested Member State. The assumption that the requested Member State's declaration of agreement also has a constitutive effect under the Dublin III Regulation, they say, is contrary to the CJEU's case-law on the Dublin III Regulation, according to which an applicant for asylum can now also assert, in a legal remedy, the erroneous application of responsibility criteria. Accordingly, a declaration of agreement should precisely not establish responsibility. They argue as well that the Court of Appeal held unconvincingly that the Dublin system would be contravened if an applicant had the power to decide whether or not to submit his or her procedure to the Dublin Regulation. This, they claim, cannot be prevented in any event, because an applicant is free from the outset to limit the request to seeking national protection from deportation. It can be left open whether an application for international protection should be assumed, irrespective of the principle of party disposition (Dispositionsmaxime), if an applicant has not formally requested international protection, but has nevertheless stated reasons that are covered by international protection. After all, the claimants point out, they had not yet submitted any arguments to support their application, so that there is no room for an interpretation that goes beyond the formal application, which was limited to national protection from deportation. Directive 2013/32/EU, they argue, allows an applicant to explicitly seek another form of protection, to be applied for separately, instead of international protection. They contend that furthermore, section 32 AsylG in cases of withdrawal explicitly provides that the Federal Office is also to assess whether the requirements for a national deportation ban exist pursuant to section 60 (5) or (7) AufenthG. In any event, they say, the contested notice cannot be upheld as lawful without a reference for a preliminary ruling to the CJEU.
The defendant defends the judgment on the appeal on points of fact and law, and furthermore holds that the claimants have not even effectively withdrawn their asylum applications.
The Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) did not take part in the proceedings.
10 The claimants' appeal on points of law is without merit. The Senate does not need to take a final decision whether - as it tends to - the Higher Administrative Court's legal opinion that the further applicability of the Dublin rules is not excluded by a withdrawal of an application for asylum when that withdrawal is made only after the requested Member State agrees to take charge of the applicant is compatible with federal law (section 137 (1) Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)); nor does the Senate need to finally decide whether this consequence proceeds with sufficient clarity from the case-law of the Court of Justice of the European Union to date. The contested judgment is correct in the result, at least for other reasons (section 144 (4) VwGO). The inadmissibility decision (1.) and the deportation order (2.) in the Federal Office's notice of 30 October 2014 are already legally unobjectionable simply because the claimants did not effectively withdraw their asylum applications, and Austria's responsibility for the asylum procedure remains in place if for that reason alone.
11 The legal assessment of the claimants' requests is based on the Asylum Act 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 Third Act Amending the Asylum Act (Drittes Gesetz zur Änderung des Asylgesetzes) of 4 December 2018 <BGBl. I p. 2250>, which entered into force on 12 December 2018 while the appeal proceedings on points of law were in progress) - the Asylum Act - and on Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for assessing an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 p. 31) - the Dublin III Regulation. 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 current legal situation if it were to decide on the matter now, unless a derogation is required for reasons of substantive law (established jurisprudence, see BVerwG, judgment of 20 February 2013 - 10 C 23.12 - BVerwGE 146, 67 para. 12). The provisions, that are decisive here, have not changed, however, since the decision of the Higher Administrative Court. Under EU law, the Dublin III Regulation applies, because the claimants filed their applications for international protection after 1 January 2014 (article 49 of the Dublin III Regulation).
12 1. The action is admissible as an action for annulment insofar as it is directed against the inadmissibility decision in no. 1 of the Federal Office's notice (BVerwG, judgment of 27 October 2015 - 1 C 32.14 - BVerwGE 153, 162 para. 13 et seq.), and is also admissible with regard to all other aspects; but it is without merit.
13 Admissibility is not precluded by a lack of a recognised legal interest in bringing proceedings because the claimants withdrew their asylum applications. Though they therefore no longer seek recognition of an entitlement to asylum and the grant of international protection (section 13 (2) AsylG), they nevertheless wish to prevent their transfer to Austria. They can achieve that goal only if they successfully challenge the inadmissibility decision. This is because the deportation order founded on section 34a (1) first sentence AsylG is linked to an inadmissibility decision pursuant to section 29 (1) no. 1 AsylG.
14 The inadmissibility decision that the Federal Office founded at the time on section 27a AsylVfG, old version, is lawful and does not violate the claimants' rights. The decision has had its legal basis in section 29 (1) no. 1 (a) AsylG since the entry into force of the Integration Act (Integrationsgesetz) of 31 July 2016 (BGBl. I p. 1939). According to that provision, an application for asylum is inadmissible if another country is responsible for conducting the asylum procedure according to the Dublin III Regulation. These conditions have been met in this case. The claimants filed applications for asylum (1.1) for which responsibility of the Republic of Austria has been established under the Dublin III Regulation (1.2). The statement of 28 November 2014 that the claimants "limit" their asylum applications to a declaration of the existence of national deportation bans, and withdraw them "with regard to all other aspects", has changed nothing about that responsibility, if only because that statement has not brought about an effective withdrawal of the asylum applications (1.3). Responsibility was also not transferred to the Federal Republic of Germany by the expiry of the time limit (1.4).
15 1.1 The claimants filed applications for asylum in September 2014. An asylum application that formally initiates an asylum procedure exists in any event if, and as soon as, an application designated as such has been filed in accordance with section 14 AsylG with the body designated in that provision. As the applicant does not immediately need to state grounds for the application at the time of filing, and a personal interview concerning reasons for asylum generally does not take place until a later stage after international responsibility has been clarified, the existence of an asylum application must be assumed once the application has been formally filed, whether or not it was based on reasons that are thematically assigned to international protection and thus substantively establish a request for asylum pursuant to section 13 (1) AsylG; in fact, this must automatically be assumed from the time at which the application is formally filed. Furthermore, this does not contradict the meaning of the term of an "application for international protection" under EU law, which is inherent in the asylum application pursuant to section 13 (2) AsylG. According to article 2 (b) of the Dublin III Regulation in conjunction with article 2 (h) of Directive 2011/95/EU (and with almost identical wording, also article 2 (b) of Directive 2013/32/EU), an application for international protection means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately. An application for international protection is deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned (article 20 (2) first sentence of the Dublin III Regulation). That was also undisputed in this case.
16 1.2. International responsibility for assessing the claimants' applications for asylum lay with the Republic of Austria once it had agreed to the Federal Office's request to take charge. According to the responsibility criteria governed by Chapter III of the Dublin III Regulation, Austria was responsible at the relevant time of the (first) lodging of the asylum application (see article 7 (2) of the Dublin III Regulation), because the claimants entered the federal territory with a valid Austrian Schengen visa (article 12 (2) first sentence of the Dublin III Regulation).
17 This responsibility does not end under article 3 (2) second paragraph of the Dublin III Regulation, because there are no substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in Austria, resulting in a risk of inhuman or degrading treatment within the meaning of article 4 of the Charter of Fundamental Rights of the European Union. The Senate can assess this point irrespective of the fact that the Court of Appeal made no explicit findings concerning the situation relevant to deportation in the Republic of Austria. That is because nowhere in the entire proceedings have the parties submitted any points in this regard, nor should any such considerations have become evident to the Court of Appeal (concerning Austria, see already BVerwG, judgment of 8 January 2019 - 1 C 16.18 - (...) para. 37).
18 The Federal Office asked the Republic of Austria to take charge of the claimants within the three-month time limit under article 21 (1) of the Dublin III Regulation, specifically on 14 October 2014. The Republic of Austria agreed to this request, in accordance with article 12 (2) of the Dublin III Regulation, in a letter dated 29 October 2014 - and thus within two months after receiving the request (article 22 (1) of the Dublin III Regulation). This established Austria's obligation to take charge of the claimants under article 18 (1) (a) of the Dublin III Regulation.
19 1.3 The claimants' statement of 28 November 2014 that they were "limiting" their asylum applications to a declaration on the existence of national deportation bans and were withdrawing them "with regard to all other aspects" has changed nothing as to Austria's responsibility and obligation to take charge once it had been thus established. It is true that contrary to its ambiguous wording, the declaration was meant to result in a full withdrawal of the asylum applications (a). Nevertheless, it did not bring about an effective withdrawal of those applications under national asylum procedure law, because the substantive requirements for an effective withdrawal were not met (b, c). EU law does not oppose holding that the withdrawal is ineffective (d).
20 a) The statement must be interpreted as indicating that the claimants wished to withdraw in full (and not just partially) their asylum applications, which under section 13 (2) AsylG not only included recognition of an entitlement to asylum but also the grant of international protection within the meaning of section 1 (1) no. 2 AsylG. This must be so, because the request that the claimants still adhere to, for national protection from deportation - which is regularly to be assessed as well in an asylum procedure (section 31 (3) AsylG) - is not covered by the term "asylum application" pursuant to section 13 (1) and (2) AsylG. According to the recognisable context, in the present case this request for protection from deportation is meant to refer to the claimants' country of origin, Iran, and not to Austria, because in their statement the claimants intended to terminate the Dublin procedure and bring about a decision under section 32 first sentence AsylG in a national procedure (see BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 25), in which the assessment of deportation bans refers to the country of origin. There is no need to decide here whether this purpose can be achieved by a withdrawal after the requested Member State has agreed to a request to take charge (see above).
21 b) A formal statement that an asylum application has been withdrawn is in any case insufficient for an effective withdrawal if the applicant - like the claimants here - continues to invoke national deportation bans with respect to their country of origin. In such a case, rather, it must be shown additionally that the still-maintained request for protection from deportation is not based on grounds that are substantively covered by international protection (refugee and subsidiary protection). These additional requirements proceed from the recognised restriction of freedom of disposition in lodging requests for protection referring to the country of destination.
22 A request for protection that is substantively assigned to international protection can be lodged only with the Federal Office in an asylum procedure. According to the Senate's jurisprudence on the Asylum Procedure Act, an applicant who had made a substantive request for asylum within the meaning of section 13 (1) AsylVfG (old version) was to be referred to an asylum procedure conducted by the Federal Office for all requests and forms of protection relating to the country of destination, and had no option of choosing between an assessment by the foreigners authority and an assessment by the Federal Office (see BVerwG, judgment of 9 June 2009 - 1 C 11.08 - BVerwGE 134, 124 para. 34). Accordingly, a separate assessment competence of the foreigners authority with the participation of the Federal Office pursuant to section 72 (2) AufenthG, old version, existed only with regard to those risks relating to the country of destination that were recognisably unsuited to establish protection under asylum or refugee law.
23 The Act on the Transposition of Directive 2011/95/EU (Gesetz zur Umsetzung der Richtlinie 2011/95/EU) of 28 August 2013 (BGBl. I p. 3474), shifted in favour of the asylum procedure the allocation of competences - with effect as from 1 December 2013 - between the asylum procedure to be conducted by the Federal Office and the separate assessment competence of the foreigners authority concerning risks relating to the country of destination. This is because since that time, the term substantive "asylum application" under section 13 (1) and (2) AsylG has also incorporated a request for subsidiary protection. Accordingly, section 72 (2) AufenthG was amended so that now it includes only national deportation bans. In view of these changes in the law, the aforementioned jurisprudence must be adjusted accordingly, although it should be maintained in principle. Now, an applicant is mandatorily referred to the asylum procedure conducted by the Federal Office already if he or she invokes risks which by their nature are objectively suitable of justifying the grant of asylum or refugee status, but also if they only justify subsidiary protection. A request for protection that is substantively directed to international protection is consequently always to be treated as an asylum application.
24 Section 72 (2) AufenthG is thus not rendered obsolete, but instead retains a scope of application, albeit a limited one. Finally, national protection from deportation under section 60 (5) AufenthG in conjunction with article 3 of the European Convention on Human Rights (ECHR), although largely identical with the subsidiary protection under section 4 (1) second sentence no. 2 AsylG, is not entirely so. It retains its own scope of application in those cases, among others, in which an impending risk of inhuman or degrading treatment does not emanate from an actor as specified in section 4 (3) and section 3c AsylG - which is a mandatory requirement for subsidiary protection (see CJEU, judgments of 18 December 2014 - C-542/13 [ECLI:EU:C:2014:2452], M'Bodj - (...) para. 35 et seqq., and C-562/13 [ECLI:EU:C:2014:2453], Abdida - para. 47 et seq.; and of 24 April 2018 - C-353/16 [ECLI:EU:C:2018:276], MP - para. 51; Mannheim Higher Administrative Court (Verwaltungsgerichtshof), judgment of 3 November 2017 - A 11 S 1704/17 - (...) para. 169; (...)). The same scope of application remains for the declaration to be made after a(n) (effective) withdrawal of an asylum application, with the discontinuance of the asylum procedure under section 32 first sentence AsylG, as to whether there is a deportation ban under section 60 (5) or (7) AufenthG. However, in all cases where alleged risks relating to the country of destination principally fall within the scope of application of subsidiary protection (as well), a substantive asylum application exists, and the foreign national must mandatorily be referred to the asylum procedure at the Federal Office.
25 The claimants unsuccessfully raise the objection to this that under the aforementioned definition of an application for international protection under EU law (article 2 (h) of Directive 2011/95/EU, article 2 (b) of Directive 2013/32/EU), an application for international protection does not exist if an applicant "explicitly requests another kind of protection, outside the scope" of these Directives, "that can be applied for separately". EU law does not prescribe whether and to what extent a kind of protection can be applied for separately outside the scope of application of the Directives on international protection. But under German asylum procedure law as interpreted by supreme court jurisprudence, national protection from deportation precisely does not constitute a form of protection to be "applied for separately" if risk situations are involved that are covered by international protection.
26 c) On that basis, the effectiveness of the withdrawal of an asylum application presupposes a plausible statement that no (or no further) reasons for protection are to be asserted that are thematically covered by international protection at least in cases where, as is the case here, an applicant initially has sought international protection without any limitation to particular reasons for protection, and still invokes national deportation bans even after the withdrawal. This is also the case when - as the claimants did here - an applicant had not yet submitted any arguments in support of the asylum application at the time of withdrawal. By formally filing an asylum application under section 14 AsylG, an applicant analogously states the intent to assert such reasons for protection. In the absence of further information, the applicant must adhere to this statement until further notice. An effective withdrawal then presupposes an understandable statement that and why this categorisation of the request for protection was incorrect, or that and why the reasons for protection have changed since that time in such a way that now they can clearly only fall under national protection from deportation. This is not the case here. According to the findings of the Court of Appeal and the undisputed contents of the file, the claimants have not communicated what led them to withdraw their asylum applications. Such statements were not unnecessary, because hitherto they had also not yet submitted any arguments in support of their asylum applications.
27 d) EU law does not oppose holding that the asylum application withdrawals are ineffective. Under EU law, Member States may freely decide whether and under what conditions to permit an explicit withdrawal of an application for international protection (aa). It is also up to the German authorities and courts to decide on the effectiveness of the withdrawal under German law, subject to the Dublin procedure and limited to its purposes (bb).
28 aa) article 2 (e) of the Dublin III Regulation defines the "withdrawal of an application for international protection" as the actions by which the applicant terminates the procedures initiated by the submission of his or her application for international protection, in accordance with Directive 2013/32/EU, either explicitly or tacitly. The procedure in the event of an (explicit) withdrawal of the application is governed by article 27 of Directive 2013/32/EU. This provision contains procedural requirements for the case that ("insofar as") Member States "provide for the possibility of explicit withdrawal of the application under national law". The Member States are therefore free to deny entirely the possibility of an explicit withdrawal. Given this background, EU law also ("a fortiori") does not prevent them from setting specific, self-defined requirements for the substantive relevance of such a withdrawal.
29 bb) The Senate, as a German court, must decide on the effectiveness of the withdrawal under its national law. In case of doubt, the competent authority or court of the Member State conducting the Dublin procedure has to decide whether an application for international protection has even been filed in the first place (see CJEU, judgment of 3 May 2012 - C-620/10 [ECLI:EU:C:2012:265], Kastrati - para. 37 et seq.). That ultimately is also what is concerned in the question - as is relevant here - of the effectiveness of the withdrawal of an application. The assessment carried out in this regard by the Member State conducting the Dublin procedure, under its national law, is limited to the purposes of the Dublin procedure, and under EU law has no binding effect for the assessment of the application to be performed by the Austrian authorities after transfer.
30 1.4 At the time of the decision on the appeal on points of fact and law, finally, responsibility had not been transferred to Germany by the expiry of the time limit (article 29 (2) first sentence of the Dublin III Regulation) (nor has it been transferred now).
31 The six-month time limit initially triggered by the acceptance of the request to take charge, under article 29 (1) first subparagraph first alternative of the Dublin III Regulation, began to run on 29 October 2014. Before it had expired, this time limit was interrupted, under article 29 (1) first subparagraph second alternative of the Dublin III Regulation, by the claimants' timely applications for the court to order the suspensive effect for their actions against the deportation order; these applications, filed on 12 November 2014, triggered a transfer ban by virtue of law (see section 34a (2) second sentence AsylG in conjunction with article 27 (3) (c) second sentence of the Dublin III Regulation). Because of this transfer ban, which ensures proper procedures, under section 80 (5) first sentence first alternative VwGO and the established jurisprudence of the Senate, the request constitutes an appeal that has a suspensive effect under article 27 (3) of the Dublin III Regulation (see article 29 (1) first subparagraph second alternative of the Dublin III Regulation). The time limit is thus interrupted simply by filing the application for temporary relief, irrespective of whether that application succeeds (see BVerwG, judgment of 8 January 2019 - 1 C 16.18 - (...) para. 17). On the basis of the reasons for its decision of 27 April 2016 - 1 C 22.15 - ((...) para. 18 et seqq.), the Senate furthermore holds that the case-law of the Court of Justice of the European Union (see CJEU, judgment of 29 January 2009 - C-19/08 [ECLI:EU:C:2009:41], Petrosian - para. 40 et seqq., 44) has clarified that even in cases in which a transfer was only temporarily excluded by virtue of law or by an effective decision in the individual case, the Member States must have a continuous time limit of six months which they are deemed to require in full in order to determine the practical details for carrying out the transfer.
32 Upon the issuance of the Administrative Court's decision refusing the applications for interim protection in its order of 12 December 2014, the six-month time limit initially recommenced, but it was interrupted once again before it had expired. However, contrary to the opinion of the Court of Appeal, such a new interruption of the time limit did not result from the mere declaration by the Austrian authorities - given in a letter of 27 May 2015 - that they consented to a transfer after the time limit expired. The time limits in the Regulation cannot be extended even by mutual consent between Member States (CJEU, judgments of 26 July 2017 - C-670/16 [ECLI:EU:C:2017:587], Mengesteab - para. 59-62 (...); and of 25 October 2017 - C-201/16 [ECLI:EU:C:2017:805], Shiri - para. 30, 34). Nevertheless, because of the decision of 9 June 2015 by which the Higher Administrative Court according to section 80 (7) VwGO ordered the suspensive effect of the actions, the claimants' legal remedy once again acquired a suspensive effect, and therefore the time limit was once again interrupted.
33 There is no need to examine further whether the Senate might take account of an expiry of the time limit while the appeal proceedings on points of law were in progress (likewise leaving the matter open, BVerwG, judgment of 8 January 2019 - 1 C 16.18 - para. 34), because no such expiry occurred while the appeal proceedings on points of law were in progress. The interruption remains in force until a final and binding decision on the actions, because under section 80b (1) first sentence first alternative VwGO, the suspensive effect continues until the administrative act becomes final. No relevance attaches here to the provision in section 80b (1) first sentence second alternative VwGO, according to which, in the event that the action will be dismissed in the first instance proceedings, the suspensive effect ends three months after the expiry of the statutory time limit for stating reasons for an appeal against the dismissing decision. That provision does not cover the present case, in which, though the action was dismissed in the first instance proceedings, nevertheless the suspensive effect was ordered (for the first time) by the Court of Appeal, which then also dismissed the action in the second instance proceedings. In any case the exceptional nature of the provision - which imposes a burden - opposes an application by analogy to this case configuration.
34 2. The deportation order founded on section 34a (1) first sentence AsylG is likewise lawful. If a foreign national is to be deported to a country responsible for conducting the asylum procedure (section 29 (1) no. 1 AsylG), the Federal Office is to order the deportation to that country as soon as it has been ascertained that the deportation can be carried out (section 34a (1) first sentence AsylG). These conditions have been met in this case. The Federal Office made a lawful inadmissibility decision. At no time have the claimants asserted anything concerning deportation bans relating to the country of destination or to this country that would preclude the feasibility of a deportation to Austria; nor is anything otherwise obvious in this regard. Therefore,no objection can be raised to the fact that the Court of Appeal upheld the deportation order as lawful, in the absence of reasons to believe otherwise, without making any further explicit findings in this regard.
35 3. The decision on costs is founded on section 154 (2) VwGO. According to section 83b AsylG no court costs will be charged. The value of the matter proceeds from section 30 (1) of the Act on the Remuneration of Attorneys (RVG, Rechtsanwaltsvergütungsgesetz). There are no reasons for a derogation under section 30 (2) RVG.