Case summaries

A Member State is responsible for the asylum application of an unaccompanied minor if the minor does not have a family member in said Member State and the minor's application has been finally rejected in another Member State, provided that the unaccompanied minor resides in the relevant Member State.

The responsibility for examining an application does not cease to apply upon the mere acceptance of a request to take charge by another Member State.

This case examined the compatibility of the Dublin II Regulation with the European Convention on Human Rights regarding transfers to Italy under the Dublin II Regulation.

The Court found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the Swiss authorities were to send an Afghan couple and their six children back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

The case examines allegations of the indiscriminate expulsion of foreign nationals from Italy to Greece who had no access to asylum procedures and who subsequently feared deportation to their countries of origin. In regards to four of the applicants, the Court held that Greece violated Article 13 (right to an effective remedy) and Article 3 (prohibition of inhuman or regarding treatment).  It also held that Italy violated Articles 13 and 3 as well as Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens.)

The Court ruled that under national law the authorities are obliged to issue a decision on discontinuing the procedure if another Member State is responsible for the application. The provision leaves no margin of discretion. The authorities had no obligation to examine the way that the other State treats asylum seekers, if it is a Member State of the EU and applies European standards of dealing with third country nationals.

In the situation where the other State decided to accept the responsibility and examine the application, it should be understood that they examined its admissibility in the light of the Dublin II Regulation, taking into account the time that the applicant spent away from that State. 

Hungary’s practice of not suspending its deportation procedures for second time asylum applicants amounts to a serious and unlawful interference with an applicant’s constitutionally guaranteed right to apply for refugee status.

The Aliens Litigation Court has cancelled a judgment by the Secretary of State for Asylum, Migration and for Social Integration, which refuses leave to remain to a Cameroon national with an order of expulsion to Cyprus, the first European State through which the applicant entered.

The decision of the German Federal Constitutional Court allowed a Dublin transfer of a woman and her infant child to Italy stating that the applicants did not sufficiently substantiate that they were at risk of living on the streets when returned to Italy.

The competent authority has to provide suitable guarantees to ensure the well-being of the infant applicant when returned to Italy.

The Respondent erred in detaining the Applicant under § 88a (1)(a) point 1 of Act No 404/2011 Coll. on the residence of aliens and amending certain other Acts in proceedings relating to administrative expulsion to the Ukraine, despite being aware of the Applicant’s intention to apply for asylum. The Respondent also incorrectly assessed whether Ukraine is a safe third country as he failed to take into account recent information on the current situation in Ukraine. Moreover, in assessing the risk of absconding, the Respondent asked improper questions. As such the Respondent's conduct violates principles of good governance.

The Dublin transfer of the applicant to Hungary will not violate Article 3 of the Convention. 

Section 62 subsection 3 first sentence No. 5 of the German Act of the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act) does not comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013 which defines ‘risk of absconding’ as the existence of reasons in an individual case, which are based on objective criteria defined by law. Section 62 subsection 3 first sentence No. 5 of the Residence Act names ‘risk of absconding’ as a reason for detention but lacks the required objective criteria to determine the existence of the ‘risk of absconding’. Therefore according to the current legal situation in Germany detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 cannot be based on the detention reason ‘risk of absconding’.

The detention reasons named in Section 62 subsection 3 first sentence No. 2 and No. 3 of the Residence Act comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013. Detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 can be based on these provisions.