The applicant, Burundian national, applied for asylum on 26 June 2019 and a take back request was sent to the Italian authorities based on the Dublin III Regulation, which did not respond to the request. Based on Article 22 of the Dublin III Regulation, the Belgian determining authority adopted a decision to refuse residence and to quit the territory, assessing that Italy is responsible to process the asylum application and that Italy is fully complying with international conventions and EU law in the field of asylum and reception. The transfer took place on 10 February 2021 when the applicant also lodged an application before the Italian authorities.

The applicant contested the decision and the determining authority argued that the applicant has no longer an interest in the action since the transfer tool place. The CALL reiterated that according to article 29 par. 3 and 30 of the Dublin III Regulation, if the transfer took place by error or is annulled under appeal or revision, the State which proceeded to the transfer has to immediately take care and process the application. The CALL estimated that the applicant still had an interest to pursue the appeal. The applicant based its appeal on the fact that Belgium shall process the application and if not, it would entail a violation of the Article 3 ECHR due to lack of medical assistance for his health problems, namely psychological and psychiatric issues.

The CALL cited the CJEU case C.K. and Others v Republic of Slovenia (Republika Slovenija), Case C-578/16 16 February 2017, where the Court stated that particular attention has to be made to objective elements, including medical certificates proving the medical situation of the applicant, and irremediable consequences that a transfer can have for an applicant due to a particularly serious medical issue. The CALL considered that it should take into account the medical report of the hospitalisation of 5 September 2019 and the OSAR report of 8 May 2019 (where it was underlined that psychological and psychiatric support in reception facilities was reduced) which constituted objective elements in the file. The CALL concluded that the risk of being subject to treatment contrary to the Article 3 ECHR cannot be excluded and thus annulled the decision to refuse residence and quit the territory.