Case summaries

The Court quashed the decision of the Office of Immigration and Nationality (OIN) because it failed to carry out a proper establishment of facts as required by the Dublin III Regulation.

The asylum applicant cannot be transferred to Bulgaria because he would face a real risk of being subjected to inhuman or degrading treatment pursuant to Article 4 of the EU Charter of Fundamental Rights.

Hungary does not guarantee the respect of asylum procedures. The transfer must be halted in accordance with article 3 of the Dublin Regulation (EU) No 604/2013.

The judgment’s motivation must be based on more than one source if others are available.

The applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.

The transfer of asylum seekers from Belgium to Austria, under the Dublin Regulation, is contrary to the principle of due diligence, because the government has failed to obtain information on the effects of the moratorium of the processing of asylum applications in Austria.

The Court suspended domestic proceedings and referred the case for preliminary ruling procedure to the Court of Justice of the European Union (CJEU). The Court asked the CJEU to clarify the substance of its ban on exposing applicants for international protection to ‘tests’ to substantiate their sexual orientation.

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.

The applicant is a Nigerian gay man whose credibility was questioned by the asylum authority (OIN) and his application was rejected. The court, however, found that the applicant’s statements were coherent and credible. The court found also that the psychological examination of the applicant’s sexual orientation cannot be accepted because it is humiliating and violates the right to private life.

Having restored credibility the court quashed the administrative decision and ordered a new procedure where the situation of the applicant and other gay men in Nigeria must be assessed.    

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.