Case summaries

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 imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

The Court rejected the Applicant's challenges to the respondent's decision to certify his asylum claim and deport him, on the grounds (i) of his mistaken assessment of his probable situation if deported to Italy, (ii) of his misreading of the Dublin III Regulation, specifically insofar as it applies to effective remedy.   

Article 17 forms an integral part of the Dublin Regulation and should be applied in a manner which furthers the aims and objectives of the Regulation in general. Article 17 is a justiciable right and should be particularly relied upon in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures of the host Member State. Article 17 is not subject to a prior assessment of non-satisfaction of Article 8 (family reunification) of that same Regulation.

Applicants who engaged with Dublin authorities should be subjected to less onerous standards when assessing the success of an Article 8 ECHR claim.

The UK Upper Tribunal held that there had been a failure of the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation and ordered the Secretary of State to admit the applicant to the UK, based on: (1) the deficiencies of the Italian asylum system in the present case, namely the lack of sufficient expedition to register the asylum application and initiate Dublin proceedings; (2) the deficiencies and delay in the guardianship system in Italy; (3) the expected lengthy procedures for a “take charge” request and subsequent Dublin transfer; (4) the need to take into account the best interests of children.

Article 3 of the ECHR imposes an absolute obligation on contracting States not to deport an asylum seeker where doing so would expose him or her to a genuine and serious risk of violence. Under the discretionary clause in Article 17(1) of the Dublin III Regulation, this remains the case where the application does not fall within the immediate responsibilities of that State.

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.

In its decision, the tribunal defined the concept of ‘written’ according to the Dublin III Regulation. It also found that the a couple who were engaged did not constitute a family (according to the Regulation) unless they got engaged in their country of origin. Finally, the tribunal found that the sovereignty clause only afforded power to the State which was exercising it under the supervision of the administrative judge. 

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?

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.