Case summaries
A Member State is not required to issue a decision on its own responsibility under Dublin III when, in its capacity as the determining Member State, it found that there is no sufficient evidence to establish responsibility of another Member State. Domestic courts do not have to examine the application of the Dublin criteria ex proprio motu in the context of a review of the rejection of an application for international protection.
Religion is a broad concept that encompasses both internal elements of faith and an external component of manifestation. The applicant does not have to provide documentation and make statements on both elements but has to cooperate with the authorities and substantiate the reasons that his claim of persecution on the grounds of religion is true. The provision of the death penalty in national legislation could constitute an “act of persecution” on its own, provided that the penalty is actually enforced and regardless of whether the measure is considered important for reasons of public order in that country of origin.
The Court considered that the decision-maker should have had taken into consideration the applicant’s alleged vulnerable situation, and as a result ordered the case’s remittal to the Central Administrative Court of Lisbon so evidence could be collected on this.
The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system.
Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.
Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.
The State Secretary has to carefully weigh interests when deciding about the application of Article 17 (discretionary clauses) of the Dublin Regulation where it concerns an adult applicant whose family members are beneficiaries of international protection in this Member State. The fact that an earlier request for family reunification has been refused, does not imply that the potentially destabilizing effect of a Dublin transfer no longer has to be taken into consideration.
The authorities followed an incorrect interpretation of the Dublin Regulation 604/2013 failing to take into account that the older applicant is the brother of the minor and should remain in Hungary under Article 10 of the Regulation, despite having lodged an application in Bulgaria.
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 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.