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The applicant, Algerian national applied for international protection in the Netherlands but on 30 March 2021, the State Secretary for Justice and Security decided not to examine the application because Croatia is responsible for examining it under the Dublin Regulation. The applicant contested the decision and alleged that a Dublin transfer to Croatia would result in a breach of Article 3 ECHR. The State Secretary has however relied on the principle of mutual trust between Member States when deciding on the transfer.
The applicant claimed before the Court of the Hague and further before the Council of State that the State Secretary did not address the risk for a third country national to be redirected from Croatia to a third country due to pushbacks and without having been able to make an application for international protection and go through an asylum procedure.
The Court of the Hague considered that third country nationals in Croatia do not face a real and serious risk of being treated in breach of the EU Charter, Article 4. Although it is not disputed Croatian practice of pushbacks at the border, the court relied on the AIDA report on Croatia (2020 Update) of May 2021 and considered where it was mentioned that Dublin applicants transferred to Croatia do not experience any problems in accessing the asylum procedure and reception conditions. According to the court of the Hague, the State Secretary has therefore rightly taken the position that he can still rely on the inter-state principle of the protection of legitimate expectations with regard to Dublin claimants for Croatia.
In the subsequent appeal, the Council of State addressed the question of whether the State Secretary has properly justified that he is right to apply the Dublin Regulation to Croatia on the basis of the principle of the inter-State protection of legitimate expectations and that the foreign national does not run a real risk of ending up in a situation contrary to Article 4 of the EU Charter and Article 3 of the ECHR when returning to Croatia, including not being subject to push back to a third country.
The Council of State stated that when a third country national argues, but reference to objective information, that the State Secretary can no longer rely on the principle of mutual trust, it is for the later to demonstrate in a resonated manner why it reaches a different conclusion based on the same objective information and it has also to justify why the systemic errors in the asylum procedure and/or reception system in the transfer State are not fundamental or those deficiencies do not reach the threshold of severity as the CJEU ruled in Abubacarr Jawo v Bundesrepublik Deutschland.
When the State Secretary can not properly justify the applicability of the principle of inter-state mutual trust and legitimate expectations, he is obliged to carry out a further investigation in the requested Member State (see the judgment of the ECtHR of 21 January 2011, M.S.S. v Belgium and Greece). According to the Council of State, a further investigation in the requested Member State does not affect the principle of mutual trust but will confirm that the principle can still be relied on (CJEU, C.K. and Others v Republic of Slovenia (Republika Slovenija)).
The Council of State further concluded that the pushbacks in Croatia constitute a fundamental systemic error in that country's asylum procedure, which reaches the particularly high threshold of gravity. As for the consequences on Dublin procedure, the Council of State ruled that although the pushbacks at the external borders do not in themselves mean that Dublin applicants cannot be transferred to Croatia, there are concrete indications that the State Secretary can no longer assume that Croatia will comply with its international obligations with regard to the third country national.
The Council of State concluded that the State Secretary should have carried out further investigation into the risk for transferred Dublin applicants to be deported by Croatia without treatment or during the examination of their asylum application. Considering the nature, extent and duration of the fundamental systemic error at issue and that it reaches the particularly high threshold of gravity, the absence of information on the situation of Dublin applicants after transfer to Croatia cannot be at the risk of the foreign national. Consequently, the State Secretary decision was annulled.
The applicant submitted an appeal on points of law against a judgement of the High Administrative Court and claimed procedural violations because the lower court took a decision without an oral hearing, and his right to be heard was allegedly infringed. The applicant based his appeal on article 6 ECHR and 47 of the EU Charter.
The Federal Administrative Court rejected the appeal and found that the implementation of the simplified appeal procedure was not wrong. The applicant was granted international protection in Italy and the BAMF has rejected his application in Germany, ordering his return. He contested the decision and the BAMF considered that there were no impediments to the transfer because the applicant as a young, healthy and employable recognised beneficiary of protection was highly likely to be able to secure a minimum level of subsistence and to find employment in Italy. Before the High Administrative Court, the BAMF invoked that there was no need for further clarifications over the situation in Italy and also the applicant did not raise any specific request for evidence that would require an oral hearing.
The Federal Administrative Court considered that the lower court took into consideration the applicant’s arguments on the access to labour market in Italy even tough if did not find compelling reasons to cancel the transfer. The Federal Administrative Court also stated that no new oral hearing is necessary if the case does not raise questions of fact or law which cannot be adequately resolved on the basis of the file and the written observations of the parties, as mentioned in the ECtHR case law.
Moreover, the Federal Administrative Court considered that there was no further need to clarify on the threshold to find a risk of inhuman and degrading treatment since the CJEU clarified already in Ibrahim that a person entitled to protection is actually threatened with a situation of extreme material hardship, independent of his will and his personal decision, only after the unsuccessful exhaustion of all (legal) remedies to avert the violation of fundamental rights. Precisely, when the applicant is not vulnerable, but healthy and able-bodied person, the latter is expected to develop a high degree of initiative, to make all reasonable efforts to ensure their basic existential needs, including the submission of applications to authorities and courts, and to actively seek and avail themselves of the support of civil society organisations.
According to the Federal Administrative Court, the decisive factor is whether, in the event of their repatriation, the non-vulnerable persons concerned, despite all the efforts to be demanded of them and also when taking advantage of all the reasonable offers available, were likely to find themselves in a situation of extreme material hardship which did not allow them to satisfy their most elementary needs and which adversely affected their health or put them in a state of impoverishment.
Since the High Administrative Court did not establish a different legal principle from this, the Federal administrative Court considered that there is no point of divergence or of clarification.
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