Case summaries

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.

The UK Secretary of State for the Home Department’s (SSHD) refusal to accede to a take charge request of a stateless wife and her child in Greece wishing to reunite with their British husband/father in the UK is a breach of Article 7 Charter/8 ECHR (and Article 6(1) of the HRA 1998) on the basis that the SSHD’s decisions were disproportionate and not justified. Notwithstanding that the husband/father is a British citizen, the Dublin Regulation applies, notably Articles 9 and 17(2). In respect of Article 9 Dublin Regulation III, it can be relied upon even where an individual in receipt of international protection subsequently naturalises as a British citizen. 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.

When a Dublin transfer does not take place within the six-month time limit prescribed in the Dublin III Regulation, responsibility for examining the application for international protection is automatically shifted to the Member State that requested the Dublin transfer. Moreover, the Court extends the scope of the right to an effective remedy provided in the Dublin III Regulation, specifying that an applicant for international protection can challenge a Dublin transfer before a national court by invoking the expiry of the prescribed six-month time limit.

The case concerns the calculation of time limits for detention for the purpose of a Dublin transfer under Article 28 of the Dublin III Regulation (DRIII).

Article 27(1) of the Dublin Regulation is to be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.

The two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests.

An application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.

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. 

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.   

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.

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.