Case summaries
There is a case of urgent necessity concerning interim measures according to § 123 VwGO obliging a Member State to accept a take charge request regarding the asylum applications of family members of a person entitled to subsidiary protection in that state when the decision on an asylum application of these family members is imminent in the requesting state.
Neither Austrian law nor the provisions of the Dublin III Regulation provide for legal remedies against a Member State’s rejection of a request for admission. The Dublin Regulation provides for a remonstration procedure between the Member States concerned in the event of a rejection, whereby after expiry of the remonstration period the requesting Member State is finally responsible for examining the application for international protection. A later agreement after the remonstration period has expired cannot establish any responsibility.
The CJEU ruled that an asylum applicant may not be transferred under the Dublin III Regulation to the Member State responsible for processing their application if the living conditions would expose them to a situation of extreme material poverty amounting to inhuman or degrading treatment within the meaning of Article 4 CFR. In this regard, the Court held that the threshold was only met where such deficiencies attained a particularly high level of severity beyond a high degree of insecurity or significant degradation of living conditions. Correspondingly, national courts had the obligation to examine, based on information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there was a real risk for the applicant to find himself in such situation of extreme material poverty.
An act of absconding withing the meaning of Dublin III may be presumed when the applicant has left the accommodation allocated to them without informing the competent authorities, provided that they have been informed of this obligation, unless the applicant provides valid reasons for not informing the authorities.
The CJEU ruled that an asylum seeker may not be transferred to the Member State that has previously granted him international protection if such living conditions would expose the applicant to a situation of extreme material poverty. The threshold was only met where such deficiencies attained a particularly high level of severity, going beyond a high degree of insecurity or significant degradation of living conditions.
The Court further clarified that this threshold also applied where there were infringements of the provisions of the Qualification Directive, including the level of the subsistence allowance granted to beneficiaries of subsidiary protection.
Lastly, the CJEU added that the fact that the Member State that granted subsidiary protection systematically refuses, without real examination, to grant refugee status does not prevent the other Member States from rejecting a further application submitted to them by the person concerned as being inadmissible.
The notification about the intention of withdrawal from the EU by the Member-State responsible for the examination of the application for international protection does not trigger the determining Member-State’s obligation to make use of the discretionary clause of Article 17(1) 604/2013 EU. Similarly, Article 6 (1) cannot be interpreted as imposing an obligation on the Member State that is not responsible to take into account the best interests of the child and to examine the application itself under 17 (1)
The extension of the transfer period in accordance with Art. 29 para. 2 sentence 2 Dublin Regulation (EU) No. 604/2013 (Dublin III Regulation) requires that the asylum applicant absconds, which has to be proven by the transferring authority.
Absconding is only the case, if the asylum applicant cannot be reached by the competent authorities for an (undefined) longer period of time. The intention to evade the authorities does not have to be proven. The circumstances of the individual case are decisive.
Article 8 (1) of the Dublin III Regulation provides for a subjective right to family reunification, both for the applicant himself and for the family members present in the Member State responsible. This right is also justiciable to the extent that denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor.
The expiry of the time limit for the submission of a take charge request pursuant to Article 21 (1) of the Dublin III Regulation, as well as for the submission of a request to review the rejection of a take charge request (so-called "remonstration") pursuant to Article 5 (2) of the Implementing Regulation to the Dublin II Regulation, does not reverse the responsibility back to the requesting Member State if the failure to comply with the time limit cannot be attributed to the applicant and family unity and the best interests of the child take precedence over the procedural rules on time limits.
Due to the paramount importance of the right to family unit and the best interests of the child, the discretion under Article 17(2) of the Dublin III Regulation translates into a legal obligation of the Member State to invoke the sovereignty clause where there are close family ties. Beyond such family ties, no further special relationship or interdependency is required.
Whether a minor is "unaccompanied" within the meaning of Article 2 lit. j of the Dublin III Regulation depends on the domestic law in the Member State where the minor is present.
The Council of State concludes that the Legislative Decree 113/2018 (also referred to as ‘Salvini Decree’) that reorganises the Italian reception facilities for asylum seekers does not affect the principle of mutual trust between EU member states underpinning the Dublin Regulation. The expected limits on access to adequate reception centres, specifically for vulnerable persons, does not amount to systemic flaws in the sense of Article 3 of the Dublin Regulation.
The Council of State concludes that the Legislative Decree 113/2018 (also referred to as ‘Salvini Decree’) that reorganises the Italian reception facilities for asylum seekers does not affect the principle of mutual trust between EU member states underpinning the Dublin Regulation. The expected limits on access to adequate reception centres, specifically for vulnerable persons, does not amount to systemic flaws in the sense of Article 3 of the Dublin Regulation.
The Court decides that a beneficiary of international protection cannot be deported to a country in which the individual concerned faces a serious risk of inhumane or degrading treatment. The risk of destitution after deportation is only excluded when the receiving state authorities provide a specific, and not just a general, assurance to the individual concerned.