Case summaries

The Upper Tribunal ordered the Secretary of State for the Home Department to immediately admit four vulnerable Syrians from an unofficial migrant camp in France to the United Kingdom in order to be reunited with refugee family members during the examination their asylum applications. Although they had not applied for asylum in France or been subject to Dublin procedures, the particular circumstances meant that failing to do so would lead to a disproportionate interference with their right to respect for family life. 

Due to systemic deficiencies in the Maltese asylum system, a responsibility on the part of the German authorities to examine the asylum application exists by virtue of the sovereignty clause in the Dublin III Regulation.

The question remains open and needs to be clarified in legal proceedings, whether there are systemic flaws in the Bulgarian asylum procedure and conditions of admission, such as pose a risk of infringement of Article 4 Charter of Fundamental Rights of the European Union (CFR) (cf. Article 3(2) Regulation No. 604/2013(Dublin III)) – in particular in the case of a return under the Dublin system.

The transfer of an applicant for asylum to Malta violates the Regulation (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”) because Malta’s asylum procedures and system show systemic deficiencies with the inherent risk of subjecting an applicant for asylum to inhuman or degrading treatment.  

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 Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.

A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.

The appeal against the transfer of an asylum seeker from Germany to Hungary in the accelerated Dublin procedure is granted and suspensive effect applied to the decision. The applicant may face a risk of inhuman or degrading treatment because of systemic deficiencies in the asylum procedure and reception conditions in Hungary following the entry into force of new Hungarian laws on 1 August 2015, and because of the risk of further removal to Serbia.

The Austrian asylum authorities have to consider accurately and comprehensively the changes in the legal situation and the development of the actual situation of asylum seekers in Hungary when deciding on a Dublin transfer to this country.

An application to establish the suspensive effect of a pending appeal pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) is not a legal remedy under Article 20, Paragraph 1 (d) of Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II Regulation”). A German court’s dismissal of a Section 80, Paragraph 5 application does therefore not suspend the 6-month deadline under Article 20, Paragraph 2 of the Dublin II Regulation for a member state of the European Union (“Member State”) to transfer an applicant to a Member State that has accepted (actually or  implicitly) a request to take charge.