Denmark - The Refugee Appeals Board’s decision of 30 November 2017
Keywords:
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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." |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Refugee Appeals Board reversed the Danish Immigration Service decision to Dublin Transfer a female asylum seeker and her two minor children to Italy. The Board found that a transfer to Italy could amount to a breach of Article 4 of the EU Charter of Fundamental Rights as reception conditions in Italy are subject to certain shortcomings and the asylum seeker and her two minor children were considered to be extremely vulnerable.
Facts:
The applicant, born in January 1993, is an Eritrean citizen. She entered Italy in July 2011 and was granted subsidiary protection. She entered Denmark in September 2014 and applied for refugee status. She has two children born in Denmark, one in February 2015 and the other in May 2016.
On 3 October 2014, the Danish Immigration Service issued a take-charge request to Italy which it accepted on 20 October 2014 referring to the Dublin Regulation Art. 18 (1b), cf. Art. 23, 24, 25 and 29.
The applicant lodged a complaint against the take-charge request and asked to be represented by the Danish Refugee Council which requested the applicant’s case to be considered in Denmark, cf. the Dublin Regulation Art. 17 (1).
On 7 January 2015, the Refugee Appeals Board remitted the case to the Danish Immigration Service as the necessary individual guaranty from the Italian Authorities regarding their treatment of the applicant was missing.
On 23 February 2016, the Danish Immigration Service issued a new transfer decision referring to the Dublin Regulation Art. 18 (1b).
On 29 July 2016, the Refugee Appeals Board upheld the decision of the Danish Immigration Service to transfer the applicant and her two minor children to Italy in accordance with the Dublin Regulation.
On 14 September 2016, the Danish Refugee Council applied for resumption of the case and on the same date a complaint was lodged to the UN Human Rights Committee (CCPR).
On 20 September, the CCPR asked the Danish Government to grant the applicant the right to remain pending the decision of the CCPR (suspensive effect).
On 3 October 2016, the Refugee Board rejected to resume the case.
After the exchange of pleadings before the CCPR the Refugee Appeals Board on 28 September 2017 decided to resume the case.
Decision & reasoning:
The Refugee Appeals Board noted that reception conditions in Italy are subject to certain shortcomings. However, referring to the ECtHR judgements in the cases Tarakhel v. Switzerland (Application no. 29217/12) of 4 November 2014 and M.S.S. v. Belgium and Greece (Application no. 30696/09) of 21 January 2011, the Board found that a Dublin Transfer to Italy in general would not amount to a breach of the ECHR Art. 3 or the EU Charter Art. 4.
Nonetheless, the Board found that based on an overall concrete assessment the applicant and her two minor children must be considered as extremely vulnerable. The Board emphasised that the applicant is a single woman with two minor children who during an earlier stay in Italy did not receive any help, had to live in the street where she was exposed to rape. Further, that she has been diagnosed with PTSD, that she is not capable of taking care of her children alone and the children’s and her own urgent needs for help is well documented. Thus, the Board finds that the applicant’s asylum application should be examined in Denmark cf. the EU Charter Art. 4 and the Dublin Regulation Art. 3 (2.2) and Art. 17 (1).
Outcome:
The decision of the Danish Immigration Service to Dublin Transfer the applicant was reversed by the Refugee Appeals Board cf. the Dublin Regulation Art. 3 (2.2) and Art. 17 (1).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |