Portugal: Administrative Litigation Section of the Central Administrative Court, 22/08/2019, proc. nº 1982/18.1BELSB

Portugal: Administrative Litigation Section of the Central Administrative Court, 22/08/2019, proc. nº 1982/18.1BELSB
Country of Decision: Portugal
Court name: Tribunal Central Administrativo Sul
Date of decision: 22-08-2019
Citation: Proc. nº 1982/18.1BELSB - Tribunal Central Administrativo Sul
Decision 1982 18 (0.17Mo)

Keywords:

Keywords
Dublin Transfer
Vulnerable person

Headnote:

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.

Facts:

The applicant, a national of Guiné/Bissau, applied for international protection, indicating “health reasons” (Hepatitis type B) to leave his country.

On the basis of the applicant's statements, and after consulting the EURODAC system, it was confirmed that he left his country of origin in 2016, travelled to several countries and then settled in Italy where he stayed for one year and one month approximately.

The Asylum and Refugee Office has submitted a request to the Italian authorities to take charge and has also informed them of the deadline for this mechanism. The Italian authorities did not take a decision within that period. By order of the National Director of SEF, the application for protection was deemed inadmissible and the transfer of the applicant to Italy was determined.

A medical report by a doctor at the Lisbon Hospital Centre indicates that the applicant is "following up on Chronic Hepatitis B Infectious Diseases and is undergoing therapy directed at this infection. He needs regular analytical, imagiological and clinical evaluation".

Decision & reasoning:

The Court established that once an application for protection is submitted, the respective Member State must determine which State is responsible for examining such a request. If another Member State is responsible for examining the application, it is necessary to assess the possibility of proceeding with the transfer. If there are valid reasons to believe that, in that other State, there are systemic failures in the asylum procedure and conditions of reception, which entail the risk of inhuman and degrading treatment, the transfer should not proceed.

The applicant was ill with a chronic disease, which required the maintenance of a treatment already started in Portugal. Therefore, the Court considered him a vulnerable person.

The Court considered a series of information conveyed by reports, studies, and news, coming from official websites, humanitarian organizations (including ECRE), and the media, which report limitations and failures in treating vulnerable and sick people in Italy. Thus, the Court interpreted the decision as not weighing the applicant's fragile situation, not preceded by information about possible risk conditions existing in Italy, and not weighing the safeguard clause included in Article 3 of Regulation (Reg.) No. 604/2013.

Therefore, Portugal should admit, process, and appreciate the applicant’s claim for international protection.

Outcome:

Appeal denied.

Relevant International and European Legislation:

Cited National Legislation:

Cited National Legislation
39
37
7
437- 457 Greek Criminal Procedure Code
Arts. 3
33 Constitution of the Portuguese Republic
19-A n° 1 a
20º
38
84 Law n. 27/2008 (Asylum Law)
Arts. 662
nº 1
665
Arts. 349
351 Civil Code

Cited Cases:

Cited Cases
CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland
ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09
ECtHR - Tarakhel v. Switzerland, Application no. 29217/12
ECtHR - Sharifi and Others v Italy and Greece, Application No. 16643/09
ECtHR - K.R.S. v the United Kingdom, Application no. 32733/08 (decision on admissibility), 2 December 2008
CJEU - C 163/17 Jawo, 19 March 2019
CJEU - C-578-16, C. K. and Others, 16 February 2017

Other sources:

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