The applicants, Afghan nationals are a family with 3 minor children, who have been granted international protection (refugee status) in Greece but have later applied in Switzerland. The SEM has conducted a Dublin interview where the applicants argued that they do not want to return to Greece as they would not have access to medical care and have later submitted some medical reports.

The SEM has requested the Greek authorities to readmit the applicants based on the Return Directive and on a bilateral readmission agreement, request to which the Greek authorities replied positively, confirming also that the applicant have been granted refugee status in 2020. On 20 July 2021, the SEM decided not to process the asylum application and ordered the expulsion of the applicants to Greece.

The applicants appealed against the SEM decision and the FAC reiterated that based on the Asylum Act, there is a presumption regarding safe third countries, which include EU countries, thus Greece, that they comply with their international obligations, including the principle of non-refoulement and respect for fundamental rights. The FAC also mentioned that the same standard of proof applies to obstacles to expulsion and the applicants should provide credible evidence to counter the SEM presumption on the application of safe third country concept.

Based on plenty reports concerning the asylum and reception system in Greece, the FAC made a thorough analysis of the current legislation, policy and practice with regard to asylum seekers and beneficiaries of international protection. It found that on 1 March 2020, Law 4636/2019 on International Protection and Other Provisions came into force in Greece and had significant consequences on the situation of beneficiaries of international protection. It noted that after a positive decision either by being granted refugee or subsidiary protection, benefits of asylum applicants cease 30 days after that decision. The lack of access to proper accommodation is one of the main problems faced by status holders in Greece along with difficulties in accessing health care treatment, social services, employment and education.

The FAC extensively relied on the recent case law of the CJEU on secondary movements, such as Ibrahim, Jawo, Hamed and others.

Despite all these difficulties, the FAC considered that transfers are admissible to Greece for beneficiaries of international protection because, despite shortcomings, still the reception system can not be assessed as dysfunctional, and the situation is not such as to reach the level of a risk of treatment contrary to international law.

The FAC stated and clarified that the presumption of the reasonableness of enforcement of the expulsion decision is applicable to vulnerable persons as a basic principle (e.g. pregnant women, persons suffering from health issues but not of serious illness). However, the Court provides for restrictions in the case of families with children, unaccompanied minors and persons who are seriously ill.

Families with children (with both parents or only one) can also be considered as vulnerable persons. According to the FAC, for families with children, the court considers it reasonable to execute the expulsion if favorable conditions or circumstances are met. Favorable conditions­ may exist, in particular, if the return has already resided in Greece for a long period of time, have knowledge of the Greek language, have already worked in Greece or have access to family or social network support. The assessment must take into account all the specific circumstances of the individual case, such as age­, health, training, foreign language skills and professional experience of the persons concerned, but also whether and to what extent they have made their own reasonable efforts or have already attempted to seek assistance in Greece.

In the case of unaccompanied minors and the seriously ill, the Court considers that execution of removal is unreasonable in principle unless there are exceptionally favorable circumstances. In such cases, the State Secretariat for Migration is required to conduct thorough investigations.

With regard to the present case, the FAC mentioned that it concerns a family with minor children, that some of the applicants raised medical issues, thus they are to be considered as vulnerable applicants for which the SEM has to conduct a more detailed investigation in order to determine the facts of the case, the health claims and the assistance and services already received in Greece along with determining whether favorable circumstances can be assumed.