Case summaries

The question remains open and needs to be clarified in legal proceedings, whether there are systemic flaws in the Bulgarian asylum procedure and conditions of admission, such as pose a risk of infringement of Article 4 Charter of Fundamental Rights of the European Union (CFR) (cf. Article 3(2) Regulation No. 604/2013(Dublin III)) – in particular in the case of a return under the Dublin system.

The provisions on responsibility for unaccompanied minors in Article 6 of the Dublin II Regulation are protective of the individual, as they not only govern relationships between Member States but (also) serve to protect fundamental rights.

Where there has been an unlawful rejection of an asylum application as inadmissible on grounds that another Member State is responsible under Section 27a of the German Asylum Act, this cannot be reinterpreted as a (negative) decision on a subsequent application under Section 71a of the Asylum Act, because of the different adverse legal consequences attached.

The transfer of an applicant for asylum to Malta violates the Regulation (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”) because Malta’s asylum procedures and system show systemic deficiencies with the inherent risk of subjecting an applicant for asylum to inhuman or degrading treatment.  

Asylum seekers cannot refer to a delayed take charge request by one Member State to another, in particular when the requested Member State has accepted the request. Article 17 (1) of Regulation No. 343/2003 (Dublin II) does not guarantee individual protection for asylum applicants against a transfer to another Member State. 

The rules 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 (“International Protection Directive”) do not prohibit the review of an application for asylum in Germany in a case where an applicant has previously been granted subsidiary protection in another Member State, if such application for asylum has been filed before 20 July 2015. This is because the inadmissibility of applications filed before 20 July 2015 is governed by the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“Asylum Procedures Directive”). According to Article 25 of the Asylum Procedures Directive, Member States may consider an application for asylum as inadmissible if another Member State has granted refugee status, but not if another Member State has granted subsidiary protection. 

There is a real risk that, due to overcrowded accommodation, Hungary can no longer receive returning Dublin claimants. Because of inadequate shelter, the claimant and her two minor children may be subjected to accommodation conditions which contravene Article 3 of the European Convention on Human Rights. Before the return of a vulnerable Dublin claimant occurs, Hungary must first be asked to provide guarantees of adequate shelter. 

Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State Art. 29 (2) of the Dublin III Regulation.

While accepting that Hungary is the responsible EU State for processing the applicant's asylum application (Article 18(1) Dublin Regulation III), the Court held that  a transfer to Hungary may not occur due to systemic flaws in the asylum procedure and reception conditions in Hungary,  that would  put the applicant at a serious risk of suffering inhuman or degrading treatment within the meaning of Article 4 Charter of Fundamental Rights of the European Union (CFR) and Article 3 of the European Convention on Human Rights (ECHR) (Article 3 para 2 Dublin III) .

An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary). 

The Dublin regulations do not allow for priority to be given to the processing of different types of transfer applications. In particular, there is no priority which favours a transfer application made on the Applicant’s own initiative as compared to one which is ordered by administrative compulsion. In deciding the application, the executing authority must allow the Applicant to transfer without administrative compulsion if it appears certain that (i) the Applicant will voluntarily travel to the Member State responsible for reviewing his application and, (ii) will report in a timely manner to the responsible authority. A transfer without administrative compulsion is not a deportation (Abschiebung), and therefore does not result in a statutory ban on entry and residence under Sec. 11 of the Residence Act (Aufenthaltsgesetz).