Hungary - Administrative and Labour Court of Szeged, 10 October 2016, 11.Kpk.28.614/2016/3

Facts:

The Applicant, a national of Iraq fled his country of origin out of fear of persecution by the Islamic State. He applied for asylum in Hungary, having crossed Bulgaria before.

Having interviewed him, the Hungarian authorities informed the Applicant that Hungary considers Serbia a safe third country, and he has three days to rebut this presumption. The Hungarian authorities did not inform him about the possible application of the Dublin III Regulation or asked him specifically about his treatment in Bulgaria.

His fingerprint was taken in Bulgaria, which the Hungarian authorities realised having taken his fingerprint in Hungary too.

The Dublin Unit of OIN issued a take charge request to the Bulgarian authorities who sent a positive response.

Following this, the OIN suspended the procedure and declared that Bulgaria is responsible to examine the Applicant’s claim for asylum. The Applicant challenged the decision.

Decision & reasoning:

The Court quashed the decision and ordered the OIN to conduct a new procedure, however, it did not fully appreciate the reasoning of the Applicant’s legal representative, a lawyer of the Hungarian Helsinki Committee (HHC).

The legal representative argued that the OIN’s decision was unlawful for the following reasons:

• The Applicant did not give any relevant statement about his stay in Bulgaria or the treatment received there because he was not asked to do so. This practice is against the law governing administrative procedures because it does not enable the client to exercise his rights to the fullest extent possible;
• Only through an effective exercise of the Applicant’s rights could the OIN have obtained all necessary information to assess the case in a truly individual manner, in line with the guiding principles of asylum law;
• The OIN did not respect the case law of the Court of Justice of the EU (CJEU) which held that it is a duty of a Member State not to deport an applicant for international protection to another Member State where he could be treated in a way which is not compatible with Article 4 of the Charter of Fundamental Rights;
• The European Court of Human Rights (ECHR) also held in its case law that Article 3 of the European Convention on Human Rights needs to be respected in cases of deportation;
• There is plenty of evidence, including a report by ECRE issued in February 2016 about the systematic flaws of the Bulgarian asylum system.

For these reasons, the legal representative concluded that the OIN failed to establish the facts properly, hence the decision is unlawful. The OIN commented that it made numerous attempts to confirm that returnees would be treated in a manner consistent with a Member State’s duty under EU law, and in all cases it received the exact same assurances from the Bulgarian authorities. From this, the OIN concluded that asylum seekers are not at risk of being mistreated.

The Court held that there was a violation of law, for the following reasons:

• Recital (18) of the Regulation requires a Member State to hold a hearing to be able to establish responsibility;
• Recital (18) of the Regulation requires a Member State to inform the Applicant about the applicability of the Regulation;
• Article 5 (1) of the Regulation requires a Member State to hold a personal hearing when attempting to establish whether the Regulation will be applicable. This hearing needs to respect the criteria set forth by Article 4 of the Regulation.

The Court therefore went on to note that the decision is unlawful since it was not made with respect to the above-listed criteria of the Dublin III Regulation.

The Court declared, however, that ‘the OIN did not have to invite the Applicant to account of his stay in Bulgaria; to decide whether or not he can be deported to Bulgaria does not depend on his individual circumstances.’ The Court also noted that the OIN did not violate its duty to fully establish the facts, since ‘[a]t the procedure, no information was obtained from the Applicant which would indicate he belonged to a vulnerable group, meaning that the OIN did not have to examine whether there could be a prohibition of the return of the Applicant to Bulgaria, taking into account the reports of UNHRC (dated 15 April 2014) and ECRE (dated February 2016).’

Outcome:

Appeal granted, decision quashed, new procedure ordered.