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MIL OSI Translation. Region: Germany / Deutschland –

Source: The Federal Constitutional Court press release no. 89/2020 of October 14, 2020 Decision of September 25, 20202 BvR 854/20

With a decision published today, the 1st Chamber of the Second Senate of the Federal Constitutional Court has granted a constitutional complaint by a Mauritanian who is opposing the rejection of her asylum application by the Greifswald Administrative Court and the non-admission of the appeal by the Mecklenburg-Western Pomerania Higher Administrative Court. The administrative court should have dealt with the complainant’s allegation that she was viewed by the majority society in Mauritania as a member of a “slave tribe” and consequently had no way of securing her existence in Mauritania (Art. 103 (1) GG). The Higher Administrative Court should have allowed the appeal on account of this hearing impairment (Article 19.4 sentence 1 GG).

Facts: The complainant is Mauritanian and belongs to the Peul people. She came to the Federal Republic of Germany in 2016 and applied for asylum. In the personal hearing at the Federal Office for Migration and Refugees (Federal Office), she stated that she belonged to a “slave tribe”, had no schooling and had been “given” to her aunt as a child. The Federal Office rejected the asylum application, found that there were no deportation bans and threatened the complainant with deportation to Mauritania. In her complaint, the complainant alleged that she was a female member of a “slave tribe” without any schooling or professional training, without family protection and with health problems will not be able to secure their subsistence level in Mauritania. At the hearing, she stated that despite some reading and writing skills that she had now acquired, as well as a certain knowledge of French and her work as a kitchen helper in the hotel, the only way for her to survive as an undocumented woman and without a family in Mauritania would be to work again being a slave in a household. The complainant requested that an expert report be obtained that she would not be able to secure her subsistence level after returning to Mauritania. The administrative court denied this application; the administrative court dismissed the claim. It was not clear why the complainant could not use her acquired knowledge and experience as a kitchen helper in her home country in order to secure her subsistence level. The complainant’s application for admission of the appeal was unsuccessful. With her constitutional complaint, the complainant alleges a violation of her rights under Article 103.1 of the Basic Law and Article 19.4 of the Basic Law. The administrative court violated Article 103, Paragraph 1 of the Basic Law because, without any discernible dispute with the evidence presented on Mauritania, it found that there was no ban on deportation. The Higher Administrative Court continued this violation of fundamental rights in the non-admission decision (Article 19, Paragraph 4 of the Basic Law). Main considerations of the Chamber: The admissible constitutional complaint is obviously well founded. The judgment of the administrative court violates the complainant’s right to be heard because it should have taken into account her lecture, which was relevant to the decision on securing the livelihood of people viewed as slaves in Mauritania (Article 103, Paragraph 1 of the Basic Law) The administrative court has not dealt with the ban on deportation according to Section 60 (5) of the Residence Act in conjunction with Article 3 of the ECHR, the complainant’s statements on the continued existence of slavery and the consequences for women in particular. It did not check whether, in her specific situation as a single woman belonging to a “slave tribe”, without family or other support after returning to Mauritania, she would be able to secure her subsistence level – outside of being a slave. The granting of a ban on deportation in accordance with Section 60 (5) of the Residence Act in conjunction with Article 3 of the ECHR was also not far off. The evidence referenced by the complainant in the lawsuit rather shows that members of former “slave tribes”, especially women, are still affected by extreme poverty and an existence-threatening exclusion from society in Mauritania The fact that Mauritania is one of those states in which slavery is still a major problem that has a major impact on the life of larger sections of the population should, in view of the substantiated information provided by the complainant, be used as an opportunity to clarify this. The non-admission decision of the Higher Administrative Court violates the complainant’s right to effective legal protection (Article 19 (4) sentence 1 GG). The Higher Administrative Court should have allowed the appeal due to the hearing impairment by the Administrative Court in accordance with Section 78 (3) No. 3 AsylG; the requirements on which the challenged decision is based for the demonstration of a procedural deficiency triggering the admission of the appeal are clearly excessive. There is no need to decide whether the other asserted violations of fundamental rights are present. However, there are some indications that the administrative court violated Article 103 (1) of the Basic Law by rejecting the application for evidence made during the oral hearing and that the Higher Administrative Court should have allowed the appeal also with regard to the rejection of the application for evidence (Article 19 Paragraph 4 sentence 1 GG).


EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

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