Case summaries
The Dublin transfers, which have been suspended indefinitely due to the so-called Corona pandemic, constitute a domestic-related obstacle to execution in the sense of an objective impossibility which leads to a temporary suspension of deportation (Duldung) in accordance with § 60a para. 2 sentence 1 AufenthG.
The suspension constitutes a subsequent change in circumstances leading to the order of suspensive effect pursuant to § 80 para. 7 VwGO.
A Dublin transfer to Bulgaria is annulled due to the vulnerability of the applicant combined with the risk of inadequate psychological treatment in Bulgaria, the applicant’s first country of asylum, and the lack sufficient individual guarantees in case of Dublin transfer.
In view of article 3 of the European Convention on Human Rights, Swiss authorities should obtain formal and detailed guarantees on care and accommodation from the Italian authorities before transferring families and vulnerable persons to Italy under the Dublin III Regulation.
This is because Decree-law 113/218 on Public safety and Immigration in Italy has deeply reformed the Italian refugee reception system.
The applicant brought an administrative action before the Administrative Court of the Circuit of Lisbon against the Ministry of Internal Affairs - Foreigners and Borders Service (SEF), in which he sought the annulment of the decision of the National Director of the SEF determining his transfer to Italy and the condemnation of the requested entity in the continuation of the process of international protection.
The Central Administrative Southern Court dismissed the appeal and, on grounds other than those set out in the contested judgment, upheld the decision to annul the decision of the National Director of SEF.
The Foreigners and Borders Service (SEF) appealed against the judgment of the Administrative Court of Sintra, which had upheld the application for annulment of the order of the National Director of SEF - holding that the application for asylum made by the defendant was inadmissible and held that Italy was the State responsible for taking back the applicant - and had ordered SEF to admit, process and assess the applicant's claim, with a final decision.
The Central Administrative Court of the South dismissed the appeal, confirming the contested decision on the ground of a real and proven risk of the applicant suffering cruel, degrading or inhuman treatment.
The State Secretariat for Migration (SEM) must carry out an individualised examination to determine whether there are substantial grounds for believing that the asylum procedure of the Member State where the applicant shall be transferred to has systemic weaknesses that would entail a risk of inhuman treatment or chain deportation.
The transfer of a family to the previous country of entry (Bulgaria), which might entail the risk of refoulement to the country of origin (Afghanistan), would cause an irreversible and serious harm; it ordered the suspension of the transfer decision until the final decision, on the annulment of the rejection of the application on the refugee status, was issued.
The Court decides that Greece is responsible for the examination of the applicant’s claim for international protection. The Court does not find that asylum procedures in Greece are flawed and that the applicant will be exposed to inhuman and degrading reception conditions. Moreover, neither the fact that the applicant’s sister is living in Germany nor the purpose of medical and psychological support in a Member State entitles the applicant under the Dublin Regulation to choose which country will examine his application for international protection.
The CJEU ruled that a third-country national who lodged an application for international protection in a first Member State, then left and subsequently lodged a new application in a second Member State is not entitled to rely, in an action brought under Article 27(1) DRIII in that second Member State against a decision to transfer them, on the criterion for defining responsibility stablished in Article 9. To conclude otherwise would not be in conformity with the Regulation’s general purpose to prevent secondary movements of individuals and the principle that an application for international protection must be assessed by a single Member State.
The CJEU also concluded that in the cases referred to in Article 20(5) DRIII, a possible transfer could occur without previously having been established that the requested Member State is responsible for examining the application. This is because the exercise of a take back request does not presume the responsibility of the requested Member State to examine the application, but that that Member State satisfies the conditions laid down in Article 20(5) or 18(1) (b) to (d). Adding to that, in a situation covered by Article 20(5), a Member State cannot issue a take back request when the applicant has provided reliable information establishing that that Member State must be regarded as responsible for the application.
Neither Austrian law nor the provisions of the Dublin III Regulation provide for legal remedies against a Member State’s rejection of a request for admission. The Dublin Regulation provides for a remonstration procedure between the Member States concerned in the event of a rejection, whereby after expiry of the remonstration period the requesting Member State is finally responsible for examining the application for international protection. A later agreement after the remonstration period has expired cannot establish any responsibility.