Portugal - A v. Immigration and Borders Service, No. 61/20.6BELSB, 2 July 2020
| Country of Decision: | Portugal |
| Court name: | Central Administrative Court |
| Date of decision: | 02-07-2020 |
| Citation: | A. v IBS [2020] 61/20.6BELSB |
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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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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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
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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 Court concluded that Italy had already accepted the take back request and therefore Portugal should proceed with the applicant’s transfer in accordance with the Dublin Regulation III. Since Italy had already rejected the applicant’s first request for international protection there, it should be the one responsible for returning the applicant back to their home country.
As the applicant is not a vulnerable person, the transfer order to Italy does not violate the non-refoulement principle.
Facts:
The applicant had already requested international protection from Italy twice before requesting international protection from Portugal in 2019. Following the application, the Portuguese Immigration and Borders Service formulated a take back request to Italy, which did not reply for 2 consecutive weeks, so Portugal considered that the request was accepted. On these grounds, the National Director of the Immigration and Borders Service declared the inadmissibility of the applicant’s asylum request.
Decision & reasoning:
The Court ruled that this did not correspond to a situation of determination of the responsible Member State to assess the international protection request, since the Italian Government had already rejected the applicant’s request for international protection. Portugal should therefore transfer the applicant to Italy, so the decision that was made by the latter could be enforced.
According to Article 3 Dublin Regulation III (DRIII), each international protection request should only be assessed by a single Member State, determined by the application of the criteria in Chapter III of the DRIII. In this case, the applicant’s request had already been decided by the Italian authorities, leading to its rejection, thus the applicant does not have the right to renew that request before Portuguese authorities.
Portugal should submit a take back request to the Member State that has initially rejected the applicant’s request for international protection. According to Article 18 (1, d) and Article 24 (2) and (4) DRIII, the first Member State towards which the applicant had formulated an international protection request is obliged to have him back into its territory, even if the initial request has already been officially rejected.
By not replying to Portugal’s take-back request, Italy accepted it, according to Article 25 (1) and (2) DRIII. Article 37 (2) of the Law 27/2008 establishes that in this context the National Director of the Immigration and Borders Service has 5 days to declare the inadmissibility of the applicant’s request.
If there is a risk of inhuman and degrading treatment following the applicant’s transfer to Italy, Portugal should not proceed with this transfer and should therefore return the applicant to their home country. Otherwise, it would be infringing the non-refoulement principle. However, since the applicant is not considered to be vulnerable and did not report any issues regarding Italy’s asylum reception conditions, the Court considered this would not be the case.
Outcome:
The Court ruled that the applicant’s request should be considered inadmissible according to the DRIII.
After the end of the Covid19-related temporary and exceptional measures, the applicant should be returned to Italy.
Observations/comments:
Italy’s asylum reception and accommodation practices have been previously considered by the Central Administrative Court of the South on the I. v. Immigration and Borders Service, 14 May 2020 No. 2364/18.0BELSB case as a violation of ECHR and CFREU provisions.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Law 27/2008 |
| from 30 of June: |
Cited Cases:
Other sources:
Domestic Case Law Cited
Portugal: M. v. Immigration and Borders Service, 28 May 2020 No. 2276/19.0BELSB
Portugal: D. v. Immigration and Borders Service, 14 May 2020 No. 1108/19.4BELSB
Portugal: I. v. Immigration and Borders Service, 14 May 2020 No. 2364/18.0BELSB
Portugal: A. v. Immigration and Borders Service, 14 May 2020 No. 2170/19.5BELSB
Portugal: Y. v. Immigration and Borders Service, 16 April 2020 No. 2368/19.6BELSB
Portugal: A. v. Immigration and Borders Service, 16 January 2020 No. 02240/18.7BELSB
Other Sources cited
BROUWER, Evelien: “7 in Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof” (2013)