The applicant, Syrian national, has applied for international protection in the Netherlands but the State Secretary considered that Romania is the state responsible to process the application and the Romanian authorities accepted the take back request. The applicant contested the Dublin transfer, and the Court of the Hague allowed the appeal, annulled the decision and referred the case back for re-examination. The State Secretary appealed the decision and argued that the Court of the Hague used an incorrect standard of assessment, namely that it must ascertain the factual correctness of the applicant’s statements about his previous stay in Romania before taking the position that it can still rely on the interstate principle of trust regarding Romania. 

The Council of State thoroughly analysed the case and clarified that, in accordance with the judgment in M.S.S. v Belgium and Greece, must subsequently check whether the statements of the applicant are confirmed in the objective country information relied on by the person concerned because it is primarily up to the applicant to refute the presumption that Romania complies with its international obligations based on objective references. If the applicant has demonstrated the existence of structural shortcomings, those shortcomings must reach a particularly high threshold of seriousness in order to lead to a violation of Article 3 of the ECHR and Article 4 of the EU Charter (see CJEU judgment in Jawo).

On the risk of detention, the Council of State noted that the applicant claimed to have been in detention in Romania (photos not establishing that it was him in detention) but according to the AIDA report 2019 and 2020 updates, it does not result that Dublin applicants are systematically detained in Romania, but on the contrary, an applicant may be placed in detention during an illegal stay and the applicant can be submitted in detention and it is processed under the accelerated procedure, thus a detention is not automatically contrary to the EU law.

With regard to access to legal aid and interpretation, the Council of State ruled that the applicant only relied on the AIDA reports and it did not make it plausible that interpreters are not available or that he can not rely on the authorities in case of problems, thus the applicant did not demonstrate that Romania does not fulfil its international obligations.

On the status of the application in Romania, it was noted that more than 9 months passed since the applicant was physically present in Romania, thus there is an implicit withdrawal of his application and thus his application will be considered as a subsequent application. The Council of State noted that the authorities will decide within 5 days if the subsequent application is processed and that the fact of not receiving reception for five days does not amount to the threshold of gravity within the meaning of the Jawo judgement. In addition, the Council of State concluded that the applicant has not made it plausible that he cannot apply for an effective legal remedy in Romania against withholding reception.

With regard to the COVID-19 pandemic, the Council of State noted that the State Secretary rightly argued that the transfers being postponed in connection with the coronavirus was a temporary actual impediment and this does not prevent the applicant from being transferred after this measure has been lifted.

The applicant complained of pushbacks, but the Council of State noted that it does not follow from the AIDA reports that applicants transferred to Romania under the Dublin Regulation are experiencing pushbacks to third countries without their asylum application being processed. 

In light of the abovementioned, the Council of State allowed the appeal of the State Secretary and confirmed the decision on the Dublin transfer to Romania.