Case summaries

The asylum applicant who, in the case of a supervised departure, does not appear at the boarding of his/her flight where his/her pre-transportation to the airport was not ensured, cannot be considered as having absconded.

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

In this case the Council of State had to determine whether the evidence presented by the applicant in relation to his alleged absence from EU territory for more than 3 months was sufficient to apply Article 4(5) of the Dublin Regulation. The Council held such evidence should include not only proof of absence itself but also proof of the exit and entry dates in relation to the period of absence, which was missing in this case. 

Art 3 and Art 15 Dublin Regulation are only applicable if there exist compelling reasons to believe the receiving country is incapable of welcoming asylum applicants in appropriate conditions or if the applicants can prove that they personally risk being subjected to ill treatment or not benefitting fully from an effective right to asylum. In this case, the applicants had not demonstrated they were personally victims of ill treatment in Poland. Poland was considered to offer sufficient guarantees against deportation and for an effective and impartial asylum procedure.

After the expiry of the six months’ time limit for transfer, the responsibility for examining the applications for asylum lies with the Member State in which these applications were lodged. This Member State shall examine the applications in accordance with national asylum law.

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

This case concerned the interpretation of Article 20(1)(d) and Article 20(2) of the Dublin Regulation and the analysis of time limits under these provisions when the Member State provides for suspensive effect of an appeal. The time limit for the period of implementation of the transfer begins to run, not as from the time of the provisional judicial decision suspending transfer but from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to prevent its implementation.