Federal Administrative Tribunal (Court VI), A. v. SEM, 11 February 2020, F-7195/2018

Facts:

On 5th of July 2017, the applicant introduced a second international protection request. However, the SSM found out that the applicant had already requested international protection in Bulgaria on the 13th of December 2017. The applicant’s request was refused, and the applicant was put into administrative detention pending her Dublin transfer. During the detention, she suffered of depression and psychological disorder for which she had therapy.

The applicant introduced a remedy against the transfer decision before the Federal Administrative Tribunal (FAT). She emphasized the tendency of sexual violence against women in Sri Lanka and the likely violation of the non-refoulement principle if returned to Bulgaria. The Tribunal rejected the remedy.

On 23rd of November 2017, the applicant submitted a subsequent asylum request adding new arguments to her previous request. The applicant underlined her suicide attempt when she was in Sri Lanka due to sexual violence by her husband. Besides, she produced a medical certificate regarding her treatment. The subsequent application was once again refused. Further attempts for the revision of her case on account of mental health reasons were refused and the applicant eventually appealed before the Federal Administrative Tribunal. The Tribunal suspended the order for transfer to Bulgaria.

Decision & reasoning:

In order to assess the systemic flaws of the asylum proceedings in Bulgaria, the FAT analysed in general the asylum applicants’ situation, their reception conditions and the detentions conditions, Including the situation of Dublin returnees.

The FAT found that even if the asylum proceedings have deficiencies in Bulgaria, it could not be considered them as systemic flaws. According to the M.S.S. v. Greece (ECtHR), the Bulgarian situation is not comparable to the situation in Greece. The FAT found that these deficiencies in the procedure, do not make the assessment of asylum applications impossible. Besides, the FAT considered that any discriminatory treatment of asylum proceedings could not justify stopping the Dublin transfer procedure because there are still effective ways of remedies against any negative decisions. Moreover, regarding the administrative detention’s conditions, the FAT found that they could not be viewed as inhuman or degrading treatment.

However, the FAT stressed out that, according to Abubacarr Jawo v. Germany (CJEU), even if there are no systemic flaws in Bulgaria, the applicant might face a risk of inhuman and degrading treatment in case of her Dublin transfer there.

Therefore, the FAT decided to measure the individual risk for the applicant. In its reasoning, the FAT focused on the reception conditions of the asylum seekers and observed that in case of transfer, the applicant might be placed in administrative detention. In this regard, the FAT stressed out the limits of therapy, its quality and healthcare system in Bulgaria. The FAT underlined that the psychologic state of the applicant remained fragile. Consequently, a transfer would entail a risk of deteriorating her psychological state and could involve risk of suicide.

Although a risk of suicide might not be sufficient to prevent the Dublin transfer, the Tribunal noted the necessity of sufficient health care and psychological treatment. Consequently, the FAT noticed that there was effectively a risk that the applicant would not receive adequate treatment in Bulgaria. Therefore, the FAT identified a situation  of vulnerability for the applicant. 

Assessing the vulnerability of the applicant, the FAT measured whether it was necessary to renounce to her Dublin transfer. Besides, the FAT assessed whether it was necessary to impose individual guarantees to Bulgaria for the applicant.

Regarding the assessment of the vulnerability and the need for individual guarantees, the FAT concluded that due to the vulnerability of the applicant it was not sufficient to obtain individual guarantees in Bulgaria, but the individual circumstances of the applicant’s case should be analysed and considered.

The FAT recalled that a transfer could only occur after an in-depth assessment of each case, considering the level of vulnerability to examine the likely risk of inhuman and degrading treatment.

However, considering the personal situation of the applicant, the FAT observed that the applicant’s transfer would create a risk of violation of the art. 3 ECHR and art. 4 EU Charter.

The execution of individual guarantees would not be sufficient to cope with the different problems at stake. Therefore, the Dublin transfer of the applicant should be annulled.

Outcome:

Application granted, the SSM must assess the asylum demand again. 

Subsequent proceedings:

The national administration must assess again the demand of international protection for the applicant.

The SSM could make an appeal of this judgment in front of the Supreme Federal Tribunal. 

Observations/comments:

This case summary was written by Alexandre Piérard, LLM student at UGent.