Portugal: Svetlana v. Immigration and Borders Service, 6 December 2017 No. 1526/17.2BELRS
Keywords:
| Keywords |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The applicant had fled from Russia and sought international protection from Portuguese authorities.
The request was later denied by the Portuguese Immigration and Borders Service, after issuing a take charge request directed to Finland, the responsible State for the assessment of the applicant’s request according to the DRIII, based on her possession of a short stay visa in Finland.
Facts:
The applicant and her family are part of the Jehovah’s Witnesses’ religious community. They had to flee Russia because they were being persecuted by Russian authorities due to their religious beliefs, which go counter Russia’s policy on the annihilation of the Jehovah’s church.
The claimant and her husband landed in Portugal on the 9th May 2017 with a valid visa. They arrived together with the applicant’s twin sister, her brother in law, her niece and her niece’s mother, who are in possession of Temporary Residence Permits (Autorizações de Residência Temporária).
They sought international protection from the Portuguese authorities on the 11th May 2017.
On the 5th June 2017, the Immigration and Borders Service Office for Refugees and Exiles presented a take charge request directed to Finland, which was later accepted by the Finnish State.
On the 19th June 2017, the Immigration and Borders Service’s National Director declared the inadmissibility of the applicant’s request for international protection and demanded her transfer to Finland.
The applicant appealed this decision to the Central Administrative Court of the South.
Decision & reasoning:
The Court assessed the legality of the Immigration and Borders Service decision, which was based on the applicant’s possession of a short stay visa in Finland.
According to Article 12 of the DRIII (Dublin Regulation) and Articles 19º-A/1-a)/2 and 37º/1/2 of the Portuguese Asylum Law (Law 27/2008), Finland is solely responsible for the assessment of the applicant’s request for international protection. The Court decided based on two factors: (i) the claimant’s possession of a short stay visa in Finland; and (ii) Finland’s acceptance of the take charge request.
Regarding the applicant’s right to family unity, only her husband is a member of her family, according to Article 2 of the DRIII. This is in complete harmony with Article 8 of the ECHR.
The proportionality principle only applies to administrative decisions in relation to which the Law allows a standard of free decision. This is not the case since the decision on the inadmissibility of the applicant’s request was delivered thanks to the application of EU Law and Portuguese Law on Asylum.
Outcome:
Appeal denied.
Observations/comments:
Every asylum application lodged within EU territory needs to be examined by the responsible State, and each EU country must be able to determine when it is responsible for handling an asylum claim.
The main objective of the Dublin Regulation is to ensure a quick access to asylum procedures as well as an examination of an application by a single and clearly defined Member State.
This summary was written by Matilde Chora, LLM Student at Queen Mary University London.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Law 27/2008 |
| from 30 June 2008: |
| Administrative Procedures Code |
| approved by DL 4/2015 |
| from 7 January 2015: |