Case summaries

In view of article 3 of the European Convention on Human Rights, Swiss authorities should obtain formal and detailed guarantees on care and accommodation from the Italian authorities before transferring families and vulnerable persons to Italy under the Dublin III Regulation.

This is because Decree-law 113/218 on Public safety and Immigration in Italy has deeply reformed the Italian refugee reception system.

Article 8 (1) of the Dublin III Regulation provides for a subjective right to family reunification, both for the applicant himself and for the family members present in the Member State responsible. This right is also justiciable to the extent that denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor.

The expiry of the time limit for the submission of a take charge request pursuant to Article 21 (1) of the Dublin III Regulation, as well as for the submission of a request to review the rejection of a take charge request (so-called "remonstration") pursuant to Article 5 (2) of the Implementing Regulation to the Dublin II Regulation, does not reverse the responsibility back to the requesting Member State if the failure to comply with the time limit cannot be attributed to the applicant and family unity and the best interests of the child take precedence over the procedural rules on time limits.

Due to the paramount importance of the right to family unit and the best interests of the child, the discretion under Article 17(2) of the Dublin III Regulation translates into a legal obligation of the Member State to invoke the sovereignty clause where there are close family ties. Beyond such family ties, no further special relationship or interdependency is required.

Whether a minor is "unaccompanied" within the meaning of Article 2 lit. j of the Dublin III Regulation depends on the domestic law in the Member State where the minor is present.

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.

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. 

Article 10 of Dublin III is inapplicable; Articles 9, 10 and 11 of the regulation provide for three different procedural situations, the applicant’s claim could lead to a separation of the family. 

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.

The applicant appeals the ruling of the Directorate-General for Domestic Policy, made on 16th February 2015, which denies leave to proceed (inadmissible) for international protection, claiming that another Member state (Poland) and not Spain is responsible for the examination of the asylum application as, on 3rd February 2015, Poland granted the applicant a visa.

The Member State before which the request for international protection is presented has the power to authorise temporary residence for the applicant, at their discretion, if the applicant is suffering from a serious illness which requires medical attention. In this case, the applicant is suffering from an illness but, according to the National Court, it is not a serious illness which requires specialised medical assistance. 

 The transfer of “extra vulnerable” asylum seekers from the Netherlands to Italy is contrary to article 3 ECHR.

Dublin III is characterised by the introduction or re-fortification of rights and mechanisms which guarantee the involvement of the asylum seeker in the determination process. Article 27(1) when read in conjunction with Recital 19 is ,therefore, to be interpreted as allowing an asylum seeker to appeal a transfer decision on grounds that the Chapter III allocation criteria were incorrectly applied.

An asylum applicant can be sent to a Safe Third Country by a Member State who has admitted responsibility under Dublin III in the context of a take back request, where the applicant has left the responsible Member State before a decision on the first asylum application has been taken on its merits.

The absence of information being provided to the sending Member State by the receiving Member State on the latter’s legislation and practice regarding STC does not prevent an asylum applicant being sent to a STC or breach  an applicant’s right to an effective remedy

Where an applicant has been taken back by a responsible Member State there is no obligation on the State to re-open the examination of the application at the exact point where it was left.