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 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 applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.

Art 20 (3) of the Dublin III Regulation is no longer applicable when a minor subsequently enters another member state after the application for international protection of his/ her relative is completed.

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

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 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.