The applicants, Afghan nationals, applied for asylum in May 2021 in Switzerland. They have previously applied for asylum in Greece in February 2017 and resided in Bosnia after having been rejected in Greece. They have reportedly attempted multiple times to cross the border to Croatia but they were allegedly violently pushed back to Bosnia.

Following requests sent to Greece and Croatia, the SEM was informed that the applicant were transferred from Slovenia to Croatia in March 2021 based on a readmission agreement between the two countries, but no asylum application has been submitted in Croatia. The SEM requested the Croatian authorities to take back the applicants, request initially refused but later accepted on 5 October 2021.

The SEM decided in October 2021 to send the applicants back to Croatia and they contested the decision by arguing that they were not heard in the proceedings. On 9 November 2021, the FAC annulled SEM decision and referred the case back. The applicants were interviewed by SEM on 30 November 2021 and a new decision on a transfer to Croatia was adopted on 20 December 2021. The applicants contested again the decision before the FAC.

The Federal Administrative Court allowed the appeal and held that Croatia does not appear prima facie to be the responsible state for the applicant’s claim for asylum. The FAC stated that the applicant presented in a credible manner his allegations on acts of torture and detention at the border from the police officers and that SEM should have not relied on old reports to conclude to the absence of systemic flaws in the asylum system in Croatia. In addition, the FAC noted that the applicant had serious medical issues, PTSD and he was under medical treatment for psychological problems, facts proved by medical documentation.

The FAC further held that SEM has not sufficiently clarified the facts in the case, including the date when the applicant first irregularly entered the Croatian territory, facts relevant in order to determine the responsible State according to the Dublin III Regulation and the push-backs at the Croatian border, based on updated information.