Case summaries

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 Applicants applied for asylum in Sweden, stating that they had arrived from Syria. However, investigations showed that the Applicants had entered Hungary via Serbia and applied for asylum in Hungary prior to arriving to Sweden. The Migration Court of Appeal found that the Hungarian asylum procedure and reception conditions did not contain such substantial deficiencies, that it was impossible to transfer the Applicants to Hungary in accordance with the Dublin III Regulation. However, two of the Applicants were small children, and had the Applicants been transferred to Hungary there was an imminent risk of lengthy waiting periods and a long period in custody before the Applicants could have their applications examined, which would have a considerable negative effect on the children’s health and development. Therefore, according to the Migration Court of Appeal a transfer of the Applicants under the circumstances was not consistent with the principle of the best interests of the children. With rejection of the Migration Agency’s complaint, the Applicants’ asylum applications were to be examined in Sweden.

Art 20 (3) of the Dublin III Regulation is no longer applicable when a minor subsequently enters another member state after the application for international protection of his/ her relative is completed.

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

If a Member State is responsible for carrying out an asylum procedure under the relevant terms of the Dublin Regulation, e.g. under Art. 29 (2) of the Dublin III Regulation, an applicant may invoke that Member State’s responsibility if it has not been positively established that another Member State (which does not have responsibility) is willing to take charge of the applicant or take him or her back.

In such a case, it can be derived from the objective and purpose of the Dublin system, as well as the fact that it constitutes the procedural dimension of the substantive rights granted to applicants by Directive 2011/95/EU (i.e. Qualification Directive), that the individual concerned is entitled to have his asylum application reviewed by the responsible Member State. This is so, irrespective of the question, whether the provisions on the Member State’s responsibility generally provide for subjective rights of the applicants. 

This case relates to a take back request on grounds of Article 18(1)(d) Dublin III Regulation. Referring to the A-G opinion in Ghezelbash (Case C-63/15), the Court found that Abdullahi (C-349/12) is not applicable to the Dublin III Regulation. Hence,  an applicant could call into question the application of the criteria for determining the responsible Member State in circumstances where a Member State has agreed to take back an applicant for international protection.  

The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:

When a Member State accepts a request by Germany to take charge of an applicant in accordance with Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin II Regulation”), the applicant may be transferred to that Member State even if he/she limits his/her application to subsidiary protection after the request to take charge has been accepted.

The absence of an individual right of the applicant to challenge the determination of the State responsible to examine their asylum claim on Dublin II grounds does not prohibit the autonomous application of ECHR Article 8 to decisions to remove persons from one Member State to another. However, taking into account the significance of the Regulation and the need to preserve its effectiveness, an especially compelling case would have to be demonstrated to deny removal following a Dublin II decision. When the Secretary of State has certified such human rights claims as clearly unfounded, it must be shown that the same decision could have been reached on reasonable grounds by an immigration judge.

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.