Case summaries

Article 27 of the Dublin Regulation III allows for an applicant to appeal the incorrect allocation of responsibility for a claim.  

The lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1). In an appeal against a Dublin transfer which has suspensive effect the period listed in Articles 29(1) and (2) of the DR III does not start running until the final decision on that appeal.

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. 

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. 

The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa. 

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.

On the basis of CJEU jurisprudence, the administrative tribunal found that all asylum applicants have a right to appeal the manner in which the responsibility criteria of Dublin III has been applied to their individual case and the determination of a responsible Member State where there are systemic deficiencies. 

The following question is referred to the CJEU under the expedited procedure provided for in Article 105 of the Rules of Procedure:

Does Article 26 of the Dublin Regulation III prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?

A Dublin Transfer to Italy should be prevented when the person concerned is a vulnerable person as per in Article 3 (2) Dublin III Regulation.

The Court quashed the decision of the Office of Immigration and Nationality (OIN) because it failed to carry out a proper establishment of facts as required by the Dublin III Regulation.

The Constitutional Court ruled that Member States are obliged to examine all circumstances which are important from the perspective of the principle of non-refoulement, when deciding on a Dublin transfer to a responsible Member State. Due to the absolute nature of the protection afforded by the principle of non-refoulement, the assessment must take into account all the circumstances of the particular case, including the applicant's personal situation in the transferring country. In this context, it should also be assessed whether the mere removal of an individual to another country due to their health status is contrary to the requirements arising from the principle of non-refoulement. Thus, when the Supreme Court did not consider the circumstances that are important in terms of respect of the principle of non-refoulement, it infringed the applicants' right to equal protection under article 22 of the Constitution.

The asylum applicant cannot be transferred to Bulgaria because he would face a real risk of being subjected to inhuman or degrading treatment pursuant to Article 4 of the EU Charter of Fundamental Rights.