Case summaries

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.

An authority examining an application for international protection by an individual already holding protection status in another Member Statemust check whether the protection of fundamental rights is systematically guaranteed by the country already providing international protection. This especially concerns applicants who are entirely dependent on public aid, and, in particular, on the public health system of the country providing them protection. 

The Court decides that Greece is responsible for the examination of the applicant’s claim for international protection. The Court does not find that asylum procedures in Greece are flawed and that the applicant will be exposed to inhuman and degrading reception conditions. Moreover, neither the fact that the applicant’s sister is living in Germany nor the purpose of medical and psychological support in a Member State entitles the applicant under the Dublin Regulation to choose which country will examine his application for international protection.

The detention to facilitate the return is used if the return is considered as a reasonable prospect. The period in immigration detention must correspond only to the time which is strictly necessary for the enforcement of the return measure. The lack of a justification for the failure to enforce the return does not prove that the time in immigration detention was used effectively and that an extension could be needed. 

The CJEU ruled that a third-country national who lodged an application for international protection in a first Member State, then left and subsequently lodged a new application in a second Member State is not entitled to rely, in an action brought under Article 27(1) DRIII in that second Member State against a decision to transfer them, on the criterion for defining responsibility stablished in Article 9.  To conclude otherwise would not be in conformity with the Regulation’s general purpose to prevent secondary movements of individuals and the principle that an application for international protection must be assessed by a single Member State.

The CJEU also concluded that in the cases referred to in Article 20(5) DRIII, a possible transfer could occur without previously having been established that the requested Member State is responsible for examining the application. This is because the exercise of a take back request does not presume the responsibility of the requested Member State to examine the application, but that that Member State satisfies the conditions laid down in Article 20(5) or 18(1) (b) to (d). Adding to that, in a situation covered by Article 20(5), a Member State cannot issue a take back request when the applicant has provided reliable information establishing that that Member State must be regarded as responsible for the application.

There is a case of urgent necessity concerning interim measures according to § 123 VwGO obliging a Member State to accept a take charge request regarding  the asylum applications of family members of a person entitled to subsidiary protection in that state when the decision on an asylum application of these family members is imminent in the requesting state. 

Neither Austrian law nor the provisions of the Dublin III Regulation provide for legal remedies against a Member State’s rejection of a request for admission. The Dublin Regulation provides for a remonstration procedure between the Member States concerned in the event of a rejection, whereby after expiry of the remonstration period the requesting Member State is finally responsible for examining the application for international protection. A later agreement after the remonstration period has expired cannot establish any responsibility.

The discretionary clause in Art. 17 II Dublin-III regulation might under certain circumstances oblige the member states to take charge of an applicant. This can be particularly the case, if the competence of the member state under chapter III of the Dublin-III regulation would not be given because of a deadline expiry the applicant had no influence on.

The notification about the intention of withdrawal from the EU by the Member-State responsible for the examination of the application for international protection does not trigger the determining Member-State’s obligation to make use of the discretionary clause of Article 17(1) 604/2013 EU. Similarly, Article 6 (1) cannot be interpreted as imposing an obligation on the Member State that is not responsible to take into account the best interests of the child and to examine the application itself under 17 (1)

The extension of the transfer period in accordance with Art. 29 para. 2 sentence 2 Dublin Regulation (EU) No. 604/2013 (Dublin III Regulation) requires that the asylum applicant absconds, which has to be proven by the transferring authority.

Absconding is only the case, if the asylum applicant cannot be reached by the competent authorities for an (undefined) longer period of time. The intention to evade the authorities does not have to be proven. The circumstances of the individual case are decisive.