![CDATA[ [if IE 9] ]]>
Dublin to Hungary
A Russian national who received a letter of conscription to the Russian army, left his country on a one-year visa to Bulgaria and applied for asylum there.
The State Agency for Refugees rejected his request on 19 July 2022 and also refused humanitarian status. The applicant appealed against the decision and the Administrative Court of Sofia rejected his appeal on 9 December 2022. The applicant appealed in cassation before the Supreme Administrative Court.
The Supreme Administrative Court rejected his appeal. It held that the existence of persecution due to one's race, religion, nationality, belonging to a specific social group or due to political opinion and/or conviction in one's country of origin was not proven. The court considered that the applicant did not prove that he had participated in anti-government protests. It further argued that there was no reason to believe that the official authorities in the Russian Federation were carrying out massive repression against citizens who protested against the president’s policy and that there was no particular danger of being detained and repressed if he returned to his country of origin. The court also added that there were no grounds for application of the principle of refugee sur place.
The Regional Administrative Court of Cologne annulled a Dublin transfer decision issued by the Federal Office for Migration and Asylum (BAMF) in the case of an applicant from Azerbaijan and held that it was convinced that, at the relevant time of the court decision with regard to the asylum procedure in Italy, there were far-reaching systemic deficiencies in Italy’s asylum system. The court further noted that on 5 and 7 December 2022, the Italian Ministry of the Interior informed Member States that the Italian authorities refuse to take back those seeking protection in accordance with the Dublin III Regulation, citing technical reasons and lack of reception capacity for a limited period, but without naming a specific end date. The court noted that there was actually a diplomatic refusal to accept Dublin returnees for an indefinite period as a means of political pressure within the negotiations taking place at EU level on a Common European Asylum Policy. The court concluded that it could not be foreseen when Italy would be willing to meet its obligations under the Dublin III Regulation.
The applicant challenge a Dublin transfer decision to Malta, issued by the asylum authorities in Italy.
The Court of Lecce annulled the Dublin transfer decision and held that, if transferred to Malta, the applicant could be subjected to inhuman and degrading treatment, as he would not be provided with adequate reception conditions, considering that there were indications of systemic deficiencies in Malta’s reception conditions. The court referred in its decision, among others, to reports of AIDA, UNHCR, Amnesty International and case law of the ECtHR (Feilazoo v Malta).
The applicant requested international protection in the Netherlands on 3 May 2022. A Eurodac hit showed that he had previously submitted an application for international protection in Bulgaria on 27 September 2021. By decision of 6 October 2022, the State Secretary did not process the applicant's request, as based on Article 30(1) of the Aliens Act 2000 (Vw 2000), it was established under the Dublin III Regulation that another Member State was responsible for processing the application. The authorities submitted a take back request to Bulgaria to which Bulgaria did not respond within the deadline and so it was considered that Bulgaria's responsibility has been established.
The applicant appealed against the decision.
The Court of the Hague sitting in Arnhem allowed the appeal and held that the State Secretary cannot simply assume the interstate principle of mutual trust with regard to Bulgaria, without further investigation.
Taking into account AIDA reports on Bulgaria, invoked by the applicant, the court considered that he has made it sufficiently plausible that the situation for Dublin transferees in Bulgaria has deteriorated. The court noted that AIDA reported on serious indications that pushbacks also took place for third country nationals re-admitted by Bulgaria from other EU Member States. For that reason, the court considered that the State Secretary should have conducted further research into the risk for Dublin transferees being returned from Bulgaria without access to the asylum procedure or during the processing of their asylum applications. The court considered that this was a fundamental systemic deficiency with regard to Bulgaria, which reached the particularly high threshold of seriousness.
The case concerned a request for suspension of a Dublin transfer to Lithuania. The applicant claimed that upon transfer to Lithuania he would be placed in detention and be exposed to treatment contrary to Article 3 ECHR.
The Regional Administrative Court of Karlsruhe allowed the suspension of the Dublin transfer and found that the competent authority has to determine whether the applicant would be imprisoned in Lithuania under Article 8 APD, without a proper examination of his case and in violation of article 6 EU Charter. The regional court noted that the jurisprudence is divergent amongst lower courts on transfer to Lithuania and that the competent authority would have to decide whether Article 3(2) of the Dublin III Regulation is applicable (principle of mutual trust between Member States) or the applicant shall request for Article 17(1) of the Dublin III Regulation to be applied. The court noted that CJEU ruled on 30 June 2022 in the case M.A. v State Border Protection Service at the Ministry of the Interior of the Republic of Lithuania, C-72/22 PPU, ECLI:EU:C:2022:505, 30 June 2022, on access to procedure and detention of asylum applicants in the context of mass influx of migrants. It further assessed the situation in the country and in the detention centers and found that civil society organisations’ reports mention a decrease of number of detainees and improvements in the detention conditions, However, there is an open factual question on whether Dublin returnees are at risk of unlawful detention. Despite queries to various organisations, there is no predictability as to the situation of Dublin returnees. According to reports from the Lithuanian Red Cross of 15 February 2023. Dublin returnees are allegedly brought before courts in a systematic manner upon arrival in Lithuania and subject to ‘alternative to detention’, which in practice is imprisonment because it implies placement in a center where freedom of movement is restricted to the area of that center. Also, Amnesty International mentioned that due to the legal changes of July 2021, during a declared martial law, state of emergency or a state of emergency due to a mass influx of foreigners, both asylum seekers and irregular migrants will be temporarily in centers, transit zones or to be housed at border crossings without freedom of movement within Lithuania.
The court considered that the transfer decision issued on 19 January 2023 is based on outdated information regrading the situation in Lithuania, and outdated jurisprudence from 2017. Thus, the regional administrative court concluded that there is a need for further clarifications on whether asylum applicants transferred to Lithuania would be at risk of systematic deprivation of freedom of movement while placed in accommodation centers in a situation similar to the one in the judgement M.A. of the CJEU of 30 June 2022, C-72/22.
The applicant, a Syrian national, Muslim and Arab, has claimed asylum in Austria on grounds that he was drafted for military service as a reservist and he is afraid returning to his country and his village because the Kurdish party YPG attacked his village and killed many people, including his cousin and brother. The applicant provided a military book, a copy of an extract from the family book and marriage certificate. He explained that he has a wife in Lebanon, he went to school in Syria for 9 years, worked for 13 years as a constructor in Syria, after that he did military service and worked as a farmer. He then travelled legally to Lebanon where he worked as a construction worker then he illegally entered Syria and stayed in transit for 7 days prior to travelling to Turkey and Austria. He claimed as reason to fleeing to Lebanon and fear of return to Syria that he fears being recruited either by the Syrian government or the Kurds and he would be sent to war.
The BFA rejected his claim for asylum but granted him subsidiary protection status. The BFA justified its negative decision on asylum on the fact that it considered no significant risk for the applicant for being conscripted by the Kurdish in Syria, and that his home region can be reached via one of the few crossing points which are not controlled by the Syrian government.
The applicant B.F. appealed against the negative decision and claimed a risk of being drafted to military service in Syria.
The Federal Administrative Court made a detailed examination of the case and consulted updated country of origin information, including EUAA COI Country Guidance Syria of February 2023 and COI report: Syria – Security situation, July 2021, on the security situation and military service. A hearing was also organised before the court. It its assessment, the court found the statements of the applicant as credible and noted that the applicant was able to clarify ambiguities during the oral hearing. The court found the statements credible with regard to the reason of having fled his country, and noted that although there is no danger of forcibly recruitment to do reserve service of being punished for refusing military service, as revealed by country reports, however, if the applicant would return to Syria, there is a real risk that he will be drafted into military service for the Syrian army or punished for refusing it. The court noted that the only possible return to Syria is via the Damascus airport which is controlled by the Syrian government. According to the local law in Syria, man between 18 and 42 years old are requested to perform two years of military service. According to Legislative Decree no. 30 of 2007 art. 4 lit b, this applies from January 1 of the year in which the age of 18 is reached until the age of 42 is passed and the applicant falls within the age range. According to reports and studies by various human rights organisations, the risk of forced recruitment is one of the main obstacles to return for numerous refugees and there is no possibility for legal conscientious objection in Syria or a civilian alternative service. The court concluded that there is no regular or safer way to avoid military service in Syria. If conscript would attempt to evade military service by fleeing to other parts of the country not under regime control, they would have to pass through numerous military and paramilitary checkpoints, with the risk of forcible conscription, either by the Syrian armed forces, intelligence services or pro-regime militias. Men of military age are forbidden to leave the country and the applicant was listed as a reservist on the website of the Syrian Defense Ministry. The court mentioned that according to the European Union Agency for Asylum (EUAA) COI report, all conscripts can potentially be sent to the front and thus the applicant would be forced to carry out military actions contrary to international law. With regard to conscription to the Kurdish militia, the court found that the applicant passed over the age limit for being recruited for them (conscription is between 18-24 years old). The court considered it was not possible to determine with a sufficient degree of probability that the applicant would be threatened with direct and personal persecution by the Kurds in his town village.
The court ruled, based on COI and personal situation of the applicant that he has a well-founded fear of persecution and that he has only one reasonable and legal entry to his country via the airport in Damascus, and that this entry puts the applicant at risk of being caught by the Syrian army and persecuted. The region of origin of the applicant cannot be reached without risks endangering physical safety due to reasons related to grounds for asylum.
The Federal Administrative Court overturned the negative decision and granted the applicant refugee status.
After Italy temporarily suspended incoming Dublin transfers for an indefinite period of time due to high pressure on its borders and insufficient reception facilities, the Danish Refugee Appeals Board remitted two cases to the Immigration Service for further investigation into the the significance of Italy's introduction of the state of emergency in the area of migration in relation to the reception and accommodation of Dublin transferees
Furthermore, according to the press release of the Refugee Appeals Board of 27 April 2023, the coordination committee decided to suspend all pending cases of transfer to Italy pursuant to the Dublin III Regulation.
In May 2023, the Refugee Appeals Board pronounced a decision concerning the Dublin transfer of a family with a minor child to Poland on the basis of the Dublin III Regulation.
In this case, the complainants argued that the application should be examined in Denmark, and not in Poland, due to the risk of detention and considering that they are a family with minor children and thus vulnerable to inadequate detention conditions in Poland.
The Refugee Appeals Board confirmed that Poland was responsible for the examination of the application, on the basis of Article 12(2) of the Dublin III Regulation, considering that the complainants had been issued visas in Poland with a validity of 365 days and Poland had agreed to take charge of the applicants.
The Refugee Board considered that there was no reason to believe that the conditions at the general reception centres in Poland could be considered to be affected by significant deficiencies. It made reference to AIDA’s reports which stated that overcrowding did not appear to be an issue and although some specific aspects could be improved (provision of more efficient inclusion programmes and better access to medical and psychological services), reception conditions in Poland appeared to have improved in recent years and did not represent a major cause for concern in the country. The Board added that Polish NGOs reported on difficulties in finding private accommodation as rents have increased and the financial allowances were insufficient.
However, the Board noted several sources which expressed concerns about the inadequate conditions for children and the fact that none of the detention centres was an appropriate place for children, as none of them guarantees the children’s right to education, sometimes lack common social rooms for foreigners, containers do not have sanitary facilities or they are located several hundred meters away, which due to weather conditions may endanger their health. It was also noted that two families are placed in one container which did not respect their right to privacy.
The Board also cited the Association for Legal Intervention which noted that courts automatically approved most legal motions of the border guards, resulting in many vulnerable persons, including families with children, being placed in guarded centers. According to the association, the courts also automatically extended detention beyond the initial three months, which in practice meant many persons stayed in guarded detention centers for extended periods of time. Furthermore, the association observed that children placed in guarded centers did not have access to public education and could participate only in limited educational activities organised on site.
The Refugee Appeals Board concluded that there were no systemic deficiencies that would hamper all Dublin transfers to Poland but highlighted that prior to the transfer of the persons in question, a guarantee must obtained from the Polish authorities that the complainants will have access to the asylum procedure and reception and accommodation conditions that are in accordance with the country's EU law and other international obligations.
In April 2023, the Refugee Appeals Board pronounced decisions in three reopened cases regarding Dublin transfers to Belgium, in which it had previously confirmed the transfers under the condition that prior to the transfer, guarantees would be obtained from Belgium that the authorities would provide adequate living conditions, including accommodation, and receive the persons concerned in accordance with the national legislation in Belgium and the country's EU law and other international obligations.
In February 2023, the Belgian authorities informed the Danish Immigration Service that the authorities cannot guarantee that those concerned will be offered accommodation on arrival in Belgium within a short time, as the reception system in Belgium was under great pressure. As a result, the Refugee Appeals Board decided to resume processing the cases and overturned the Immigration Service's decisions on the Dublin transfer.
For more information please consult our