Case summaries

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

It is a material prerequisite for the permissibility of a Dublin transfer of a family with children to Italy under international law to seek an individual guarantee that they will be provided with an accommodation that is appropriate for children and respects the unity of the family. This prerequisite of an individual assurance also requires it to be up to date.

A transfer decision that relies on a six months old general assurance of the Italian authorities that appropriate accommodation will be provided for, indicating the number of available places in the regions of Sicily and Calabria does not meet this requirement. Furthermore, a guarantee that does not give the names and ages of the individuals concerned is not concrete enough. 

The question remains open and needs to be clarified in legal proceedings, whether there are systemic flaws in the Bulgarian asylum procedure and conditions of admission, such as pose a risk of infringement of Article 4 Charter of Fundamental Rights of the European Union (CFR) (cf. Article 3(2) Regulation No. 604/2013(Dublin III)) – in particular in the case of a return under the Dublin system.

The transfer of an applicant for asylum to Malta violates the Regulation (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”) because Malta’s asylum procedures and system show systemic deficiencies with the inherent risk of subjecting an applicant for asylum to inhuman or degrading treatment.  

There is a real risk that, due to overcrowded accommodation, Hungary can no longer receive returning Dublin claimants. Because of inadequate shelter, the claimant and her two minor children may be subjected to accommodation conditions which contravene Article 3 of the European Convention on Human Rights. Before the return of a vulnerable Dublin claimant occurs, Hungary must first be asked to provide guarantees of adequate shelter. 

Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State Art. 29 (2) of the Dublin III Regulation.

While accepting that Hungary is the responsible EU State for processing the applicant's asylum application (Article 18(1) Dublin Regulation III), the Court held that  a transfer to Hungary may not occur due to systemic flaws in the asylum procedure and reception conditions in Hungary,  that would  put the applicant at a serious risk of suffering inhuman or degrading treatment within the meaning of Article 4 Charter of Fundamental Rights of the European Union (CFR) and Article 3 of the European Convention on Human Rights (ECHR) (Article 3 para 2 Dublin III) .

An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary). 

The court overturned a decision to transfer the Applicant to his first country of asylum, Italy, on the grounds that the Prefect failed to demonstrate that Italy would have given the Applicant the relevant assurances as to appropriate reception conditions.

The court took into account the personal circumstances of the Applicant. The Tribunal found that the Prefect’s arguments were not adapted to the circumstances of the Applicant and were too general to demonstrate that transferring the Applicant to the Italian authorities would not have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”)  Dublin III Regulation.

The Administrative Court judged that a full and rigorous examination of the consequences of transferring the applicant back to Italy is required, given the delicate and evolving situation in the country. As this was not done the prefecture’s decision to refuse to examine the asylum application and send her back to Italy was annulled. The case was remitted to the prefecture for re-examination.