Case summaries

Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State Art. 29 (2) of the Dublin III Regulation.

While accepting that Hungary is the responsible EU State for processing the applicant's asylum application (Article 18(1) Dublin Regulation III), the Court held that  a transfer to Hungary may not occur due to systemic flaws in the asylum procedure and reception conditions in Hungary,  that would  put the applicant at a serious risk of suffering inhuman or degrading treatment within the meaning of Article 4 Charter of Fundamental Rights of the European Union (CFR) and Article 3 of the European Convention on Human Rights (ECHR) (Article 3 para 2 Dublin III) .

An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary). 

The Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban.

The risk of persecutions should be assessed only on the basis of the current state of affairs or a prognosis of the situation in the foreseeable future, based on documented facts and not on general hypothesis regarding potential changes with no probability assessment. There is no doubt that in Ukraine there is a serious crisis, because of armed conflict in the part of the country, but for now there is no real risk that the conflict will cover the whole country.

The applicant is a member of a protestant church, while the dominating religion is orthodox. This circumstance should be duly taken into account when applying the internal protection alternative. The analysis whether the applicant’s fear of persecutions is well founded, should be based on updated information. The information was not updated since it came from April 2014 and the decision was taken in December 2014. The situation in Ukraine is dynamic so the appeal authority should complement the case files accordingly.

The degree of indiscriminate violence in certain parts of Iraq was such as to expose persons to a real risk of serious harm within the meaning of Article 15(c) of the Qualification Directive merely due to their presence there.

However, other areas of the country (including Baghdad City) did not meet this threshold, and as such, Iraqi nationals could be forcibly returned to these areas as it would not generally be unreasonable or unduly harsh for them to internally relocate there. 

The Supreme Administrative Court attempted to answer the question whether the objective criteria for identification of the “existing risk of absconding” in order to apply Article 28(2) of Dublin III Regulation have to be set out in an act of parliament, or whether the wider interpretation of the phrase “defined in law” contained in Article 2(n) of Dublin III Regulation should be adopted. The court decided to refer a preliminary question to the CJEU.  

Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).

The Dublin regulations do not allow for priority to be given to the processing of different types of transfer applications. In particular, there is no priority which favours a transfer application made on the Applicant’s own initiative as compared to one which is ordered by administrative compulsion. In deciding the application, the executing authority must allow the Applicant to transfer without administrative compulsion if it appears certain that (i) the Applicant will voluntarily travel to the Member State responsible for reviewing his application and, (ii) will report in a timely manner to the responsible authority. A transfer without administrative compulsion is not a deportation (Abschiebung), and therefore does not result in a statutory ban on entry and residence under Sec. 11 of the Residence Act (Aufenthaltsgesetz).

This case examined the denial of a minor’s application for asylum which was decided primarily on the failure of his mother’s application. The Refugee Appeals Tribunal did not consider Country of Origin Information (COI) from the child’s perspective. Furthermore, clear reasons were not given for the refusal decision. The High Court granted leave and quashed the Refugee Appeals Tribunals decision to deny refugee status to the child. The Court also held that the best interests of the child should be a primary consideration of the Tribunal both with regard to the procedure and substantive consideration of appeal.