Case summaries

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

The applicants are Afghan nationals married religiously in Iran when the first applicant was 14 years old and the second applicant 18 years old. When they applied for asylum in Switzerland a year later, the Swiss authorities did not consider them as being married and the second applicant was subsequently expelled to Italy. They alleged that this expulsion constituted a violation of their Article 8 ECHR right to respect for family life. The Court found that the Swiss government had been justified in finding that they were not married, and held that the decision to expel the second applicant was not a violation of Article 8.

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims.  A further right to appeal remained with the Cypriot Supreme Court.  The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.

The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.  The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.

The considerable delays of receiving an appointment at the Prefect in order to register an asylum application means that applicants are deprived of legally entitled guarantees, notably material ones. Consequentially such delays constitute a serious and manifestly illegal infringement upon the fundamental right to asylum.

The Police Prefect must register the asylum application within 10 days of the notification of this decision. 

A court’s decision on a request for suspensive effect of an appeal against a deportation order does not affect the expiration of the 6-month period set out in Art. 29(2) of the Dublin III Regulation. According to German law, a deportation order ceases to be effective upon expiration of this 6-month period.

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.

It is a material prerequisite for the permissibility of a Dublin transfer of a family with children to Italy under international law to seek an individual guarantee that they will be provided with an accommodation that is appropriate for children and respects the unity of the family. This prerequisite of an individual assurance also requires it to be up to date.

A transfer decision that relies on a six months old general assurance of the Italian authorities that appropriate accommodation will be provided for, indicating the number of available places in the regions of Sicily and Calabria does not meet this requirement. Furthermore, a guarantee that does not give the names and ages of the individuals concerned is not concrete enough. 

No obligation rests upon the asylum seeker to voluntarily and of their own accord go to the Member State that will examine the asylum application under the Dublin Regulation as this obligation rests primarily on the Member States. Neither the failure to leave, nor the lack of adequate resources, can form the basis for a custodial measure.