Summary:

I.

The applicant is Mauritanian and belongs to the Peul people. She arrived in Germany in 2016 and applied for asylum. In the personal interview at the Federal Office for Migration and Refugees (hereinafter, the “Office”), she stated that she belonged to a “slave tribe”, had not gone to school, and had been “given away” to her aunt as a child. The Office rejected her asylum application, determined that prohibitions on deportation did not apply to this case and ordered the applicant’s deportation to Mauritania. Before the administrative courts, the applicant asserted that, as a female member of a “slave tribe” without schooling or vocational training, without family protection and with health problems, she would not be able to secure her subsistence in Mauritania. At the court hearing, she stated that she had acquired some reading and writing skills as well as some knowledge of French and that she had worked as a kitchen assistant in a hotel. In spite of all that, her only option for surviving in Mauritania as a woman without identity documents and without a family would be to work as a slave in a household. The applicant requested that a statement by an expert witness be obtained stating that she would not be able to secure her subsistence after returning to Mauritania. The Administrative Court not only rejected this request, but also the applicant’s action altogether. The court stated that it was not evident why the complainant could not use her acquired knowledge and her experience as a kitchen assistant in her home country to secure her subsistence. The applicant’s request for leave to appeal was unsuccessful.

In her constitutional complaint, the applicant challenged the decisions of the administrative courts claiming a violation of her rights under Article 103.1 and Article 19.4 of the Basic Law.

II.

Based on the considerations below, the Federal Constitutional Court decided that the decision of the Administrative Court violated the applicant’s right to be heard pursuant to Article 103.1 of the Basic Law because it failed to consider her assertions concerning the livelihood of people in Mauritania who are regarded as slaves even though these assertions were relevant to the decision.

The Administrative Court did not deal with the applicant’s key assertions on the continued existence of slavery and the consequences, in particular for women. However, these aspects are relevant to the decision on whether there is a ban on deportation based on the country of destination pursuant to § 60.5 of the Residence Act in conjunction with Article 3 ECHR. The court did not examine whether, in her specific situation as a single woman belonging to a “slave tribe” without family or other support, she would be able to secure her subsistence after a return to Mauritania in any other way than becoming a slave. It is not unreasonable to assume that a ban on deportation pursuant to § 60.5 of the Residence Act in conjunction with Article 3 ECHR might apply in this case. The evidence referred to by the applicant in the legal proceedings shows that members of former “slave tribes”, especially women, continue to be affected by extreme poverty in Mauritania and by exclusion from society threatening their very existence.

Apart from this violation of the right to be heard, the Administrative Court should have taken the opportunity provided by the substantiated assertions of the applicant to further inquire into the situation in Mauretania. In particular, the court failed to assess the fact that Mauritania is one of the countries in which slavery still represents a serious problem that significantly shapes the lives of large groups of the population even today.

The decision by the Higher Administrative Court not to admit her appeal violates the applicant’s right to effective legal protection pursuant to the first sentence of Article 19.4 of the Basic Law. Pursuant to § 78.3 no. 3 of the Asylum Act, the Higher Administrative Court should have admitted the appeal on the grounds of the Administrative Court’s violation of the right to be heard. The requirements for the presentation of a procedural defect pursuant to § 78.3 no. 3 of the Asylum Act set out in the challenged order by the Higher Administrative Court are excessive.

There is no need to decide whether other fundamental rights were violated, as was asserted by the applicant. However, there are indications that suggest that the Administrative Court also violated Article 103.1 of the Basic Law by rejecting the request for obtaining a statement by an expert witness at the oral hearing. In consequence, the Higher Administrative Court should have admitted the appeal also in this respect in order to uphold the guarantee of effective legal protection pursuant to the first sentence of Article 19.4 of the Basic Law.