Case summaries

The three-month time limit for take back requests, as prescribed by Article 21(1) of the Dublin III Regulation, will apply as soon as the competent authorities of the relevant Member State have been informed, with certainty, of the fact that international protection has been requested. Where certain responsibilities for the registration of applications have been delegated to a competent legal entity, the authorities will be deemed to have been so informed once the legal entity in question has made a written record of the applicant’s intention to claim asylum. 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.

The ECtHR reviewed if the detention of a family with three children in a border police’s detention facility would be considered as a breach of Article 3 ECHR.

The applicant had fled from Russia and sought international protection from Portuguese authorities.

The request was later denied by the Portuguese Immigration and Borders Service, after issuing a take charge request directed to Finland, the responsible State for the assessment of the applicant’s request according to the DRIII, based on her possession of a short stay visa in Finland.

The Refugee Appeals Board reversed the Danish Immigration Service decision to Dublin Transfer a female asylum seeker and her two minor children to Italy. The Board found that a transfer to Italy could amount to a breach of Article 4 of the EU Charter of Fundamental Rights as reception conditions in Italy are subject to certain shortcomings and the asylum seeker and her two minor children were considered to be extremely vulnerable. 

The following questions are referred to the Court of Justice of the EU for a preliminary ruling:

(i) when dealing with transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU;

(ii) does the concept of the “determining member state” in regulation 614/2013 include the role of the member state in exercising the power recognised or conferred by art. 17 of the regulation;

(iii) do the functions of a member state under art. 6 of regulation 604/2013 include the power recognised or conferred by art. 17 of the regulation;

(iv) does the concept of an effective remedy apply to a first instance decision under art. 17 of regulation 604/2013 such that an appeal or equivalent remedy must be made available against such a decision and/or such that national legislation providing for an appellate procedure against a first instance decision under the regulation should be construed as encompassing an appeal from a decision under art. 17;

(v) does art. 20(3) of regulation 604/2013 have the effect that in the absence of any evidence to displace a presumption that it is in the best interests of a child to treat his or her situation as indissociable from that of the parents, the national decision maker is not required to consider such best interests separately from the parents as a discrete issue or as a starting point for consideration of whether the transfer should be take place.

When a Dublin transfer does not take place within the six-month time limit prescribed in the Dublin III Regulation, responsibility for examining the application for international protection is automatically shifted to the Member State that requested the Dublin transfer. Moreover, the Court extends the scope of the right to an effective remedy provided in the Dublin III Regulation, specifying that an applicant for international protection can challenge a Dublin transfer before a national court by invoking the expiry of the prescribed six-month time limit.

Sending countries are under the obligation not to transfer any individual to another country if any reasonable doubt regarding systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State arises. The mere assumption that the country will comply with its obligations under international and European law is not sufficient and the sending country is under the obligation to comply with the precautionary principle and not allow the transfer.

An applicant may not be detained with a view to carrying out a transfer under the Dublin Regulation, in the absence of objective criteria for assessing the existence of a significant risk of absconding, defined in a binding legal provision of general application.

Family unity and the best interests of the child are high priorities when applying the Dublin III Regulation.  A child who has applied for international protection in Germany but has members of his family in Greece is entitled to family unity with them in Germany. The Dublin III Regulation specifies that this transfer should be carried out within six months of a Member State’s acceptance of the take charge or take back request. The time period to transfer starts from the Member State’s acceptance of the request. The right of the asylum seeker to be transferred within said time-limit is a subjective right. Whilst Germany had accepted the take charge request they had only planned to transfer the applicants at a time after the six month deadline. An interim injunction was therefore necessary in order to ensure that the rights of the applicant were respected.