Case summaries

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.  

Asylum seekers cannot refer to a delayed take charge request by one Member State to another, in particular when the requested Member State has accepted the request. Article 17 (1) of Regulation No. 343/2003 (Dublin II) does not guarantee individual protection for asylum applicants against a transfer to another Member State. 

The case concerns inhuman and degrading treatment by police officers during deportation, including the use of tear gas. The Constitutional Court found a violation of Article 3 ECHR in substantive as well procedural limb. 

On appeal to an Administrative Court, the burden of proof regarding the authenticity of newly presented evidence by a claimant to a Tribunal is on the adverse party, in the present case the Prefect.  A third country national can be returned to a country where he/she can be lawfully admitted. However, as provided by Article L.513-2 of the French Code on Entry of Foreigners and Right to Asylum,  a third country national cannot be returned to a country if the latter proves that his/her life or freedom would be threatened or he/she would be exposed treatments contrary to Article 3 of the ECHR. 

There is a real risk that, due to overcrowded accommodation, Hungary can no longer receive returning Dublin claimants. Because of inadequate shelter, the claimant and her two minor children may be subjected to accommodation conditions which contravene Article 3 of the European Convention on Human Rights. Before the return of a vulnerable Dublin claimant occurs, Hungary must first be asked to provide guarantees of adequate shelter. 

The applicants, a stateless Palestinian from Syria and two Syrian nationals, had been ordered to be expelled to Syria by the Russian authorities, and were detained in a detention centre in Russia pending this. The Court found that their expulsion to Syria would breach Articles 2 and 3, that Articles 5(4) and 5(1)(f) had been violated with regards to their detention, and that the restrictions on their contact with their representatives had breached Article 34.

Termination of an applicant’s international protection status (ie where there is a change or termination of protection grounds) must be examined against the principle of non-refoulement, which ensures the right to a fair and efficient procedure in which the Asylum authority assesses if non-refoulement would be violated where protection ceases.

It results from the principle of non-refoulement that the applicant in proceedings on termination of subsidiary protection must have the possibility to state all the reasons for which subsidiary protection should not cease.

In the process of renewal of subsidiary protection all the guarantees provided by Article 18 of the Constitution (Prohibition of Torture) should be respected.

Legislation which limited the assessment of the competent authority in the subsidiary protection renewal procedure only to the grounds based on which an individual has been granted subsidiary protection, is inconsistent with the right set out in Article 18 of the Constitution.

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.