Italy - Council of State, 1 February 2013, No. RG 4573/2011
Keywords:
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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:
An asylum seeker cannot be considered to have ‘absconded’ within the meaning of the Dublin II Regulation because they failed to respond to a request to come to a police station in order to regularise their situation as an asylum seeker.
Facts:
The Lazio Regional Administrative Court upheld an appeal from an asylum seeker of Turkish nationality against an order from the Ministry of the Interior to transfer him to Slovenia on the basis of the Dublin II Regulation. The Court stated that the transfer of the Applicant, who was staying at a reception centre for asylum seekers, had not taken place within the deadline of six months stipulated in Article 20(2) of the Dublin II Regulation, which meant that Italy became the State responsible for examining the asylum application.
The Ministry of the Interior appealed this decision stating that the Applicant had ‘absconded’ as he had failed to present himself at a police station in order to regularise his situation as he had been invited to do (the Italian asylum procedure requires the Applicant to come several times to a police station on the basis of a prior appointment in order to complete the formalities relating to a request for international protection). In the view of the Ministry, these circumstances had resulted in an extension of the deadline for the transfer to 18 months.
Decision & reasoning:
The Council of State noted the fact that during the period in question the asylum seeker had been staying at a reception centre and that he had given the Ministry of the Interior a different address. In light of this information, the Council of State upheld the decision of the court of first instance, stating that the failure of the ‘invitee’ to come to the police station was not sufficient to hold that the Applicant had ‘absconded’. In fact, the Council of State stated that it was ‘unusual’ that, in order to carry out the transfer, the Ministry of the Interior had merely issued an ‘invitation’ to come to the police station and had not used other measures that were more effective and reliable, especially as it was aware of the two domiciles.
The Council of State held that the Ministry, which was responsible for submitting proof, had failed to provide evidence showing that the Applicant had absconded and that it was impossible to proceed with the transfer.
Outcome:
The contested judgment was upheld.