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The case concerned a Sudanese applicant's transfer to France, considered the responsible Member State under the Dublin III Regulation to examine his application for international protection. The applicant requested an interim injunction to prevent his transfer before the appeal has been heard in court. The Court of The Hague in interlocutory proceedings rejected the request for an interim measure to prevent the actual (Dublin) transfer during the appeal against a transfer decision.
The court observed that the State Secretary always took the view that due to the COVID-19 measures there are only temporary obstacles to expulsion, transfer or return. The preliminary relief judge also noted that the State Secretary considers it undesirable that the Netherlands should be responsible for the applicant's asylum application if the transfer period expires. However, the judge held that actual transfers are not possible due to the COVID-19 pandemic, which may result in the transfer period of six months to expire. The judge further held that the Dublin III Regulation does not provide for the possibility for Member States to extend or interrupt the transfer period if, as a result of a pandemic, the internal borders of the EU are closed or cross-border traffic cannot actually take place. In addition, the Dublin III Regulation also provides that the foreign national is quickly provided with clarity as to which Member State is responsible for his/her asylum application. The judge held that it is this principle of the Dublin III Regulation which precludes the granting of the provisional measure as requested by the applicant.
The court referenced the "Communication from the Commission - COVID-19: Guidelines on the implementation of the relevant EU provisions in the field of asylum and return procedures and on resettlement" of 17 April 2020 (2020/126/02) in which it is held that “Where a transfer to the responsible Member State is not carried out within the time limit, the responsibility shifts to the Member State which requested the transfer in accordance with Article 29 (2) of the Dublin Regulation. The Regulation does not contain a provision allowing derogation from this rule in a situation such as that which arose as a result of the COVID-19 pandemic."
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