Case summaries

The Council of State concludes that the Legislative Decree 113/2018 (also referred to as ‘Salvini Decree’) that reorganises the Italian reception facilities for asylum seekers does not affect the principle of mutual trust between EU member states underpinning the Dublin Regulation. The expected limits on access to adequate reception centres, specifically for vulnerable persons, does not amount to systemic flaws in the sense of Article 3 of the Dublin Regulation. 

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. 

A Member State is not required to issue a decision on its own responsibility under Dublin III when, in its capacity as the determining Member State, it found that there is no sufficient evidence to establish responsibility of another Member State. Domestic courts do not have to examine the application of the Dublin criteria ex proprio motu in the context of a review of the rejection of an application for international protection.

Religion is a broad concept that encompasses both internal elements of faith and an external component of manifestation. The applicant does not have to provide documentation and make statements on both elements but has to cooperate with the authorities and substantiate the reasons that his claim of persecution on the grounds of religion is true. The provision of the death penalty in national legislation could constitute an “act of persecution” on its own, provided that the penalty is actually enforced and regardless of whether the measure is considered important for reasons of public order in that country of origin.

In direct application of Art. 15 (2) of the Reception Conditions Directive, according to which asylum applicants must be given effective access to the labour market, the requirements of the Act Governing the Employment of Foreign Nationals (AuslBG) must be modified. The non-existence of a unanimous approval by the Regional Council pursuant to Art. 4 (3) AuslBG does not preclude the granting of employment permits to asylum applicants.

Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.

During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.

The possibility to lodge an asylum application in practice is a prerequisite for the effective protection of those in need of international protection. If access to the asylum procedure is not guaranteed by the national authorities, asylum applicants cannot benefit from the guarantees afforded to those under the asylum procedure, leaving them subject to detention at any time. The length of time in which it took for the applicant to lodge his asylum application violated his rights under Article 13 read in conjunction with Article 3 ECHR.

The detention conditions, to which the applicants had been subjected to in police stations, while being under protective custody as unaccompanied minors, violated Article 3 ECHR.  Violation of Article 3 in conjunction with Article 13 on account of the applicants’ inability to bring a complaint against the detention conditions.

Their placement in protective custody was an unlawful detention measure under Article 5, as there were no time limits, no vulnerability assessment and no consideration of this form of custody as one of last resort. The applicants had no possibility to exercise their rights under Article 5 (4), as they could not establish contact with their lawyer and the lack of official detainee status would have raised practical obstacles in any attempt to challenge their detention.

Following on from a request by several French NGOs to annul Decree No. 2017-430 of 29 March 2017 containing various provisions relating to the allowance for asylum seekers, the French Council of State annuls Article 6(2) of the Decree since it does not set in the Code on the entry and residence of aliens and the right of asylum (CESDA) an additional daily amount sufficient to enable adult asylum seekers who have accepted an offer of care, but to whom no accommodation place can be offered, to have accommodation on the private rental market.

The applicant, a victim of rape and forced marriage, has a subjective right to reception which allows her to live a life compatible with human dignity in light of her vulnerability and the minimum norms of reception. This right is entirely linked with FEDASIL’s competences to ensure reception is adapted to an individual’s circumstances. The statement of the asbl SOS VIOL clearly justifies why the applicant should be accommodated in a Local Reception Initiative, reception which is better adapted to the symptoms that she suffers from, notably anxiety and fear of men.The criticism of the asbl's statement whilist not providing any pschological assessment themselves, meant that FEDASIL’s decision not to transfer the applicant to adapted accommodation was negligent. 

The applicant is entitled to be transferred to individual accommodation and moral damages in the region of 2.500 euros.  

The Refugee Appeals Board reversed the Danish Immigration Service decision to Dublin Transfer a female asylum seeker and her two minor children to Italy. The Board found that a transfer to Italy could amount to a breach of Article 4 of the EU Charter of Fundamental Rights as reception conditions in Italy are subject to certain shortcomings and the asylum seeker and her two minor children were considered to be extremely vulnerable.