Case summaries

 The transfer of “extra vulnerable” asylum seekers from the Netherlands to Italy is contrary to article 3 ECHR.

It is unlawful to transfer an asylum applicant under the Dublin Regulation to a country, in this case Bulgaria, where the reception conditions conflict with Article 4 of the EU Charter of Fundamental Rights.

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’s asylum application was rejected in Croatia and he received an order to leave the country in 30 days. The Slovenian Asylum authority detained the applicant due to the risk of absconding, because he left Croatia before receiving a decision in his asylum procedure. The Court ruled that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding (the applicant actually respected the order to leave the country) and therefore the applicant does not present a risk of absconding. The Court also held that the measure was not necessary, that the Asylum authority incorrectly referred to its discretionary powers in this matter and that the objective criteria to determine when someone presents the risk of absconding (from Article 68 of Aliens Act-2) have not been applied.

The Constitutional Court rules that the doubts of the Federal Administrative Court about the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015, which defines the term “risk of absconding” in the context of detention pending deportation pursuant to Section 76 FPG, are unfounded. The Court finds that Section 9a(4) FPG-DVO was adopted on a sufficient legal basis. 

In order for a correct application of the responsibility determination procedure under Dublin III to take place the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in subparagraph 19(2) DR III, i.e. where the applicant provides evidence that he/she has left the territory of one Member State, having made an application there, for at least three months and has made a new asylum application in another Member State.

Dublin III is characterised by the introduction or re-fortification of rights and mechanisms which guarantee the involvement of the asylum seeker in the determination process. Article 27(1) when read in conjunction with Recital 19 is ,therefore, to be interpreted as allowing an asylum seeker to appeal a transfer decision on grounds that the Chapter III allocation criteria were incorrectly applied.

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 court overturned a decision to transfer the Applicant to his first country of asylum, Bulgaria, and also overturned the placement of the Applicant in administrative detention for five days.

The court held that given the general state of reception conditions for asylum applicants in Bulgaria and the Applicant’s particular circumstances, in particular his physical vulnerability, there were substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for asylum applicants and that if the Applicant was handed over to Bulgarian authorities, his asylum application would not be properly examined or he would be at risk of suffering inhuman or degrading treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union, article 3 of the European Convention on Human Rights, and paragraph 2 of article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”).