Case summaries

Art. 2 lit. (n) of the Dublin III Regulation requires objective criteria defined by domestic law for the ‘risk of absconding’, which is a necessary requirement for the imposition of detention pending transfer according to Art. 28 (2) of the Dublin III Regulation.

The domestic legal provision of § 76 (2) FPG lacks the necessary objective criteria defined by law for the ‘risk of absconding’ according to the Dublin III Regulation and is therefore not a sufficient legal basis for detention pending deportation in a transfer procedure according to Art. 28 (2) Dublin III Regulation.

An applicant’s interest in remaining in a Member State pending a decision on their right to remain will prevail if, due to a lack of knowledge about the actual living situation of refugees in the third country and negative public reports regarding such situations, there can be no assurance that the applicant will be safe in said third country.

Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.

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 appellant sought to have the decision of the Secretary General of the Ministry of Public Order annulled, under which her previous application for her and her son to be recognised as refugees had been rejected. The Hellenic Council of State rejected the current appeal, due to the fact that the appellant had invoked financial reasons for leaving Syria and as such, had no legal basis to be recognised as a refugee. 

The case focused on, among other things (consideration of documentation & country of origin information), the crucial issue of the duty of the State to provide appropriate and competent interpreters during the asylum process. Quashing the RAT (Refugee Appeals Tribunal)decision in this case, Faherty J ruled that she was not satisfied that the RAT had done its utmost, as required by law, to procure a Kurdish-Badini interpreter, and that the Court has to countenance the possibility that an error in interpretation could account for the perceived discrepancies in the applicant’s oral evidence.

The case examines the allegations of a Guinea-Bissau national who sought asylum in Belgium, that the remedies he tried in order to challenge the lawfulness of his detention in Belgium were neither speedy nor effective, in violation of Article 5 para 4. He further complained under Article 3 that his deportation to Greece would place him at risk of ill-treatment and under Article 13 that he did not have an effective remedy. 

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.

A transfer in accordance with the Dublin Regulation does not require the Swedish Migration Board to investigate ex officio whether there are deficiencies in the asylum system in Italy. The transfer does, however, breach the right to a family life, in accordance with Article 8 of the European Convention on Human Rights.

Interventions from third parties to proceedings initiated before the National Asylum Court may be admitted.

A person with refugee status in one European Union state who applies for refugee status in a second European Union state is presumed to have unfounded fears relating to lack of protection. However, that presumption may be rebutted by evidence to the contrary.