Case summaries

The applicant appeals against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application, both denied in compliance with the Law. The applicant has requested residence in Spain on humanitarian grounds given that he has a son who is a minor and is of Spanish nationality. He invokes his right to remain at his son’s side to care for him.  

It is unlawful to transfer an asylum applicant under the Dublin Regulation to a country, in this case Bulgaria, where the reception conditions conflict with Article 4 of the EU Charter of Fundamental Rights.

The request for a preliminary ruling reads as follows: “Should Article 32 (3) of the Visa Code interpreted in light of Recital 29 of the preamble and Article 47 of the Charter be understood as creating an obligation for a Member State to guarantee the right to an effective remedy before a court?”

In the opinion of the Supreme Administrative Court the wording of Article 32 (3) of the Visa Code does not provide clarity as to whether the EU legislator intended to give the term “appeal” the meaning of any measure envisaged in national law or to give the right to an effective remedy before a respective court. If the CJEU, in the preliminary reference proceedings, states that the right to “appeal” should be exercised before a court, the national law excluding judicial control with regard to the Consulate’s decisions refusing the issuance of a visa would be contrary to Article 47 of the Charter, as well as the principle of equivalence and effectiveness.

The Constitutional Court rules that the doubts of the Federal Administrative Court about the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015, which defines the term “risk of absconding” in the context of detention pending deportation pursuant to Section 76 FPG, are unfounded. The Court finds that Section 9a(4) FPG-DVO was adopted on a sufficient legal basis. 

The Court of Appeal concluded that the referral of an appeal under the Dublin III Regulation to an administrative agency breaches an applicant’s right to efficient remedy. 

Article 8(3)(e) of the recast Reception Conditions Directive fulfils the requirements of proportionality by virtue of the strictly circumscribed framework regulating its use. In light of Article 52(3) of the Charter, Article 8(3)(e) therefore complies with Article 5(1)(f) of the ECHR.

A court’s decision on a request for suspensive effect of an appeal against a deportation order does not affect the expiration of the 6-month period set out in Art. 29(2) of the Dublin III Regulation. According to German law, a deportation order ceases to be effective upon expiration of this 6-month period.

In case a further extension of the detention order inside an Identification and Expulsion Centre is requested by the Police Commissioner, the procedural right to be heard should be granted to the applicant. If the applicant raises an objection to the violation of his right to be heard, the requested authority shall inform of the grounds for refusing to acceede to the applicant’s argumentation. Otherwise the detention order is to be considered invalid.

In Dublin Transfer matters handled by the Migration Board, an Applicant may have the right to Legal Aid even though this right is not specifically provided in the Dublin III Regulation. In such cases, the right to Legal Aid will be provided pursuant to the Swedish Aliens Act and will depend on factors such as indications that a transfer should not occur due to circumstances in the receiving Member State or other reasons which would make it inappropriate to execute the transfer.

The interest of an applicant to obtain a temporary stay from deportation to Italy for the time being predominates, if the applicant, in case of his return back to Italy, would be threatened with serious damage to his health due to inadequate accommodation opportunities there and because medical care would not be guaranteed due to a permanent overstretch of resources.