VG Berlin - 3 L 664/21 A

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VG Berlin - 3 L 664/21 A
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Court: VG Berlin (Germany)
Jurisdiction: Germany
Relevant Law: Article 9(2)(g) GDPR
Article 11(1)(e) and (f) Directive 2011/95/EU
§ 73 (1) AsylG
§ 73 (3a) AsylG
Decided: 17.01.2022
Published:
Parties: anonymous
German Federal Office for Migration and Refugees (FOMR) - Bundesamt für Migartion und Flüchtlinge (BAMF)
National Case Number/Name: 3 L 664/21 A
European Case Law Identifier: ECLI:DE:VGBE:2022:0117.3L664.21A.00
Appeal from:
Appeal to:
Original Language(s): German
Original Source: Berliner Vorschriften- und Rechtsprechungsdatenbank (in German)
Initial Contributor: Florian Wuttke

The Administrative Court Berlin held that § 73(3a) of the German Asylum Act, which requires a refugee to cooperate with the relevant authority to assess whether the requirements for the revocation or withdrawal of their status are met, meets the requirements of Article 9(2)(g) GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

In 2016, the data subject entered Germany and applied for asylum. The asylum application was made on grounds that the data subject had converted from the Muslim to the Christian faith and feared being arrested for reasons of faith in the home country. In the application, the data subject credibly demonstrated that, due to the conversion, he would face state persecution if returned to the home country and refugee status was subsequently granted. In 2021, the German Federal Office for Migration and Refugees (FOMR) reassessed the data subject's refugee status. In a request for information with a deadline subject to a €500 fine, the FOMR asked the data subject to explain, how his interest in the Christian religion had been developing since refugee status was granted or whether the data subject had tried to convince other people of the Christian faith. In addition, the data subject was asked to provide evidence of a conversion to Christianity and of any involvement in a church congregation. The data subject filed a suit against this course of action.

The Administrative Court had to decide, inter alia, whether the FOMR’s request for participation was incompatible with Article 9 GDPR.

Holding[edit | edit source]

The administrative court decided that the request for information was compatible with GDPR requirements under EU law. The court did not find a breach of the processing of special categories of personal data under Article 9 GDPR.

Article 9(1) GDPR prohibits the processing of special categories of personal data, such as religious or philosophical beliefs, unless the processing is, inter alia, necessary under Article 9(2)(g) GDPR for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.

The court held that under § 73(1) German Asylum Act (AsylG), Article 11(1)(e) and (f) Directive 2011/95/EU and Article 1 C Geneva Convention Relating to the Status of Refugees a person’s refugee status must be revoked or withdrawn if its conditions were no longer met. Reassessments under section 73 AsylG must take place no later than three years after the original decision has become unappealable and refugee status must be revoked immediately if the conditions for it no longer exist. Thus, the processing of the requested data and the request itself is necessary for reasons of substantial public interest and is based on EU law and the law of a Member State. Requiring the refugee to cooperate according to § 73(3a) AsylG is necessary and proportionate since the FOMR was compelled to prove the conditions for revocation and it is almost impossible for the FOMR to do this without the cooperation of the person concerned. It is also reasonable to require refugees to cooperate, as they have the possibility to apply for legal protection against it.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the German original. Please refer to the German original for more details.


- Page 1 from 6
Court: VG Berlin 3rd
Chamber Date of decision: 17.01.2022File
number: 3 L 664/21 A
ECLI: ECLI:DE:VGBE:2022:0117.3L664.21A.00
Document type: Resolution
Source:
Standards: Art GG1, § Abs 733a AsylVfG §1992, Abs 76S4 AsylVfG2 § 1992,Abs77
1 AsylVfG §1992, Abs 80VwGO5 more...

Tenor
The application for interim relief is dismissed. The applicant shall bear the
costs of the proceedings.
The application for legal aid is rejected.

Reasons
I.
1 The Iranian applicant seeks interim relief against the request to answer questions and
against the threat of a penalty payment in revocation proceedings concerning refugee
status.
2 The applicant entered 2016Germany as a minor in the year and provided
- represented by the Arbeiterwohlfahrt Landesverband e.V. - submitted a 2016formal
application for asylum in a letter dated 1 February. During his personal interview, he
essentially stated that he had turned to Christianity in Iran and had encountered
problems against this background. When further asked whether he would live his faith in
Iran and if so, how, the applicant replied, "I don't think I can continue to live my faith
there. I would certainly be arrested there". When asked how often he goes to church,
the applicant replied, "I haven't gone to church yet because I am always afraid that
something will happen to me. There are many Muslims living in the accommodation, they
could persecute me. [...]."
3 By decision of May23., the Federal Office for Migration and Refugees (hereinafter:
Federal Office) granted2017 him refugee status. According to the underlying decision
memo, the applicant had credibly claimed to have converted from the Muslim to the
Christian faith. The facts of the case showed that the applicant's values were basically to
be interpreted as Christian and appeared to be inherent in him. Even if this was not to
be assessed as complete, he had credibly testified to an inner aversion to and rejection
of the teachings of Islam. Furthermore, the seriousness of his commitment to the new
religion was credible.
- Page 2 from 6
If he returned to Iran, he would have to reckon with a considerable probability of
persecution by the state.
4 In a letter dated March22., the Federal Office informed2021 the applicant that the
positive decision made in his asylum procedure was currently being reviewed and asked
him to 2021answer a number of questions in writing by April26., for example, how his
interest in the Christian religion, which he had asserted in the recognition procedure,
had developed since he was granted protection in 2017, or whether he tried to convince
other people of his Christian faith. In addition, the Federal Office asked him to submit
evidence of a conversion to Christianity in the meantime and of any involvement in a
church community.
5 By decision of October13.2021 - served on October 23.2021- the Federal Office
requested him to apply 2021for the relevant questions by November13.. At the same
time, the Federal Office threatened the applicant with a penalty payment of 500 euros.
6 The applicant filed a complaint against this on November 8.2021(VG K 3665/21 A) and at
the same time applied for interim legal protection. He is of the opinion that he is not
under any obligation to cooperate because the Federal Office has recognised his refugee
status solely on the basis of a credibly assumed previous persecution. In addition, the
cooperation he was required to provide was incompatible with the EU requirements of
the General Data Protection Regulation.
7 The applicant requests,
8 order the suspensive effect of his action - VG K 3665/21 A.
9 The respondent requests that,
10 reject the application.

II.
11 By order of today, the single judge - after hearing the parties - reassigned the case to
the Chamber on the grounds of fundamental importance (cf. section para76. sentence of
the 4Asylum2 Act).
12 The application is admissible pursuant to § para.80 sentence 5VwGO1 (cf. VG Berlin,
order of November20.2019 - VG L33 A467.19 -, legal marginal no. with14 further
references; VG Berlin, order of July 20.2020 - VG 23 L 272/20 A -, legal marginal no. 4
with further references) and also admissible in other respects. Insofar as the application
is directed against the enforceability of the order directed against him, this is not
precluded by section 44a of the VwGO, because the request to cooperate within the
meaning of section 44a sentence Alt2,. 1 VwGO can be enforced on the basis of the
threat of a penalty payment (cf. VG Hamburg, judgement of August13.2021 - 1A 5518/19
-, juris marginal no. with62 further references). The application against the
enforceability of the threat of a penalty payment is equally admissible and admissible
(cf. § para18. VwVG1; BVerwG, decision of August30.1996 - 7VR 2/96 -, juris marginal no.
15).
13 However, the application is unfounded, because in the balancing of interests required
in this regard, the legally ordered public interest in enforcement outweighs the
interest in suspension.