Case summaries

Article 8 (1) of the Dublin III Regulation provides for a subjective right to family reunification, both for the applicant himself and for the family members present in the Member State responsible. This right is also justiciable to the extent that denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor.

The expiry of the time limit for the submission of a take charge request pursuant to Article 21 (1) of the Dublin III Regulation, as well as for the submission of a request to review the rejection of a take charge request (so-called "remonstration") pursuant to Article 5 (2) of the Implementing Regulation to the Dublin II Regulation, does not reverse the responsibility back to the requesting Member State if the failure to comply with the time limit cannot be attributed to the applicant and family unity and the best interests of the child take precedence over the procedural rules on time limits.

Due to the paramount importance of the right to family unit and the best interests of the child, the discretion under Article 17(2) of the Dublin III Regulation translates into a legal obligation of the Member State to invoke the sovereignty clause where there are close family ties. Beyond such family ties, no further special relationship or interdependency is required.

Whether a minor is "unaccompanied" within the meaning of Article 2 lit. j of the Dublin III Regulation depends on the domestic law in the Member State where the minor is present.

The CJEU ruled on the time limit for Member States to respond to requests for re-examination of "take charge" or "take back" requests and clarified that Member States should endeavour to respond within two weeks; if they do not the requesting Member State retains responsibility. 

As a result of a transfer order to Italian authorities joined with house arrest, the applicant lodged an appeal. She argued she would be at risk of being exposed to inhuman and degrading treatments, as well as to systemic lapses of the Italian asylum system. In this case, the administrative tribunal granted annulment of those orders issued by the prefect of la Haute-Garonne in the light of the current Italian asylum conditions and the reasons motivating the applicant to reach France after having stayed in Italy. 

The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application  is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system. 

Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.

Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.

The carrying out of a transfer does not, in itself, definitively establish the responsibility of the Member State to which the person concerned has been transferred.

A Member State, to which an applicant has returned after being transferred, is not allowed to transfer that person anew to the requested Member State without respecting a take back procedure. In those circumstances, a take back request must be submitted within the periods prescribed in Article 24(2) of the Dublin III Regulation, which begins to run from the time the requesting Member State becomes aware of the presence of the person concerned on its territory.

The three-month time limit for take back requests, as prescribed by Article 21(1) of the Dublin III Regulation, will apply as soon as the competent authorities of the relevant Member State have been informed, with certainty, of the fact that international protection has been requested. Where certain responsibilities for the registration of applications have been delegated to a competent legal entity, the authorities will be deemed to have been so informed once the legal entity in question has made a written record of the applicant’s intention to claim asylum. 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.