Case summaries

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.)

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 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 ECtHR holds that Russia is in violation of Article 5 ECHR and of Article 4 of Protocol 4 through the implementation of an unlawful administrative practice against a large number of Georgian nationals as a means of identifying them. This led to the arrest, detention and collective expulsion of 4634 Georgians from the Russian Federation and further violations of Articles 3 and 13 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.

This ruling concerned the scope of judicial review when reviewing compliance with the criterion of Article 10(1) for determining responsibility for examining an asylum application under Regulation 343/2003. The Court held that Art. 19(2) of the Regulation must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the Art. 10(1) criterion the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter.

The Court found that the decision refusing protection and containing a return order issued to an asylum seeker, whose spouse obtained a temporary residence permit within a regularisation action, would infringe his right to respect for family life, as defined in the ECHR.