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.
Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.
Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.
An internal armed conflict, characterised by armed clashes, prevails throughout the whole territory of Afghanistan. The situation in the Kabul region and the city itself constitutes indiscriminate violence resulting from this internal armed conflict.
Transferring a family to Finland under the Dublin Regulation where their asylum application and subsequent appeals have been rejected is unlawful on account of the humanitarian and security situation in Afghanistan.
If the applicant comes from a “safe” country, they must be able to prove that there is no protection as understood in the 1951 Geneva Convention, otherwise his application will be rejected.
Where an asylum application is made by an unaccompanied child, the tribunal must take into consideration the best interests of the child in its examination (for example, education). The decision includes a presumption of minority that the tribunal must rebut in order to allow for the transfer of the applicant.
Wishing to challenge his transfer to Germany from Luxembourg, the applicant appealed this decision and the court found that, on the basis of CJEU jurisprudence, all individuals had a right to contest the manner in which the Dublin III criteria are applied.
The applicant’s asylum application was rejected in Croatia and he received an order to leave the country in 30 days. The Slovenian Asylum authority detained the applicant due to the risk of absconding, because he left Croatia before receiving a decision in his asylum procedure. The Court ruled that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding (the applicant actually respected the order to leave the country) and therefore the applicant does not present a risk of absconding. The Court also held that the measure was not necessary, that the Asylum authority incorrectly referred to its discretionary powers in this matter and that the objective criteria to determine when someone presents the risk of absconding (from Article 68 of Aliens Act-2) have not been applied.
In order for a correct application of the responsibility determination procedure under Dublin III to take place the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in subparagraph 19(2) DR III, i.e. where the applicant provides evidence that he/she has left the territory of one Member State, having made an application there, for at least three months and has made a new asylum application in another Member State.