Case summaries

The Office of Immigration and Nationality issued a decision on the responsibility of the Republic of Bulgaria under the Dublin III Regulation, without having informed the Applicant about the applicability of the Regulation in his case. The Court quashed the decision and declared the Applicant’s right to be heard was not respected.

The case concerned an application for judicial review of the decisions made on behalf of the Secretary of State to transfer the applicants to Malta, on the basis that such jurisdiction was the proper place for considering the applicants’ asylum claims. The applicants argued that such transfer would violate their rights under Article 18 of the Charter of the Fundamental Rights of the European Union (EU Charter) to have their asylum application determined within a reasonable time and on the basis of a fair procedure, as the Maltese asylum system had several shortcomings and contains procedures that are illusory or too slow. Dismissing the application, the Tribunal concluded that there was no evidence to support the argument that the applicants’ Article 18 rights would be violated if they were transferred to Malta. 

The Constitutional Court ruled that Member States are obliged to examine all circumstances which are important from the perspective of the principle of non-refoulement, when deciding on a Dublin transfer to a responsible Member State. Due to the absolute nature of the protection afforded by the principle of non-refoulement, the assessment must take into account all the circumstances of the particular case, including the applicant's personal situation in the transferring country. In this context, it should also be assessed whether the mere removal of an individual to another country due to their health status is contrary to the requirements arising from the principle of non-refoulement. Thus, when the Supreme Court did not consider the circumstances that are important in terms of respect of the principle of non-refoulement, it infringed the applicants' right to equal protection under article 22 of the Constitution.

The asylum applicant cannot be transferred to Bulgaria because he would face a real risk of being subjected to inhuman or degrading treatment pursuant to Article 4 of the EU Charter of Fundamental Rights.

Hungary does not guarantee the respect of asylum procedures. The transfer must be halted in accordance with article 3 of the Dublin Regulation (EU) No 604/2013.

The judgment’s motivation must be based on more than one source if others are available.

The applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.

A general circular letter send by Italian authorities is not a sufficient individual guarantee regarding a Dublin Transfer of a man suffering from various serious diseases.

The transfer of asylum seekers from Belgium to Austria, under the Dublin Regulation, is contrary to the principle of due diligence, because the government has failed to obtain information on the effects of the moratorium of the processing of asylum applications in Austria.

Sweden is the responsible Member State pursuant to Articles 6 and 8 of the Dublin III Regulation, as the applicant is an unaccompanied minor and his father is legally residing in Sweden. According to the court, Nidos (the guardianship institution for unaccompanied minors in the Netherlands) is an expert institution and its advice should be followed in assessing the best interest of the child.

The case considered an application against the decision of the Secretary of State refusing to consider the merits of the Claimants’ contentions for asylum, on the basis that Hungary was considered to be a “safe” country that would presumably comply with its EU and international legal obligations. The Claimants argued that they would be at risk of refoulement to Iran if removed to Hungary, in breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The Claimants further argued that along the way, they would be at risk of detention in conditions and circumstances amounting to an unlawful violation of their fundamental right to freedom and liberty under Article 5(1)(f) ECHR. The court held that removal of the Claimants to Hungary gives rise to a real risk of chain refoulement to Iran.  However, there was insufficient evidence to make out breach of Article 5 ECHR.