Case summaries

A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims. 

If the applicant comes from a “safe” country, they must be able to prove that there is no protection as understood in the 1951 Geneva Convention, otherwise his application will be rejected. 

The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

The Court rejected the Applicant's challenges to the respondent's decision to certify his asylum claim and deport him, on the grounds (i) of his mistaken assessment of his probable situation if deported to Italy, (ii) of his misreading of the Dublin III Regulation, specifically insofar as it applies to effective remedy.   

It is an appeal against the decision handed down by the Northern Central Administrative Court that denied the request to annul the order issued by the National Director of the Aliens and Borders Service.

The appeal was declared well-founded by the Supreme Administrative Court, considering the disregard of an essential formality that the law prescribes. Therefore, the decision determined the revocation of the judgment under appeal and the annulment of the contested act.

A waiver to file an appeal against custody prior to deportation is only possible under strict conditions. Particularly there has to be a qualified legal representation when signing the waiver.

The risk of absconding in the sense of Art. 76a Residence Act cannot be assumed because of the mere fact that another state is responsible for the asylum procedure of that person.

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

Where an asylum application is made by an unaccompanied child, the tribunal must take into consideration the best interests of the child in its examination (for example, education). The decision includes a presumption of minority that the tribunal must rebut in order to allow for the transfer of the applicant. 

Article 17 forms an integral part of the Dublin Regulation and should be applied in a manner which furthers the aims and objectives of the Regulation in general. Article 17 is a justiciable right and should be particularly relied upon in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures of the host Member State. Article 17 is not subject to a prior assessment of non-satisfaction of Article 8 (family reunification) of that same Regulation.

Applicants who engaged with Dublin authorities should be subjected to less onerous standards when assessing the success of an Article 8 ECHR claim.

The UK Upper Tribunal held that there had been a failure of the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation and ordered the Secretary of State to admit the applicant to the UK, based on: (1) the deficiencies of the Italian asylum system in the present case, namely the lack of sufficient expedition to register the asylum application and initiate Dublin proceedings; (2) the deficiencies and delay in the guardianship system in Italy; (3) the expected lengthy procedures for a “take charge” request and subsequent Dublin transfer; (4) the need to take into account the best interests of children.

Article 3 of the ECHR imposes an absolute obligation on contracting States not to deport an asylum seeker where doing so would expose him or her to a genuine and serious risk of violence. Under the discretionary clause in Article 17(1) of the Dublin III Regulation, this remains the case where the application does not fall within the immediate responsibilities of that State.