The case concerned a Syrian applicant who has previously applied for asylum in Sweden and with respect to whom a take back request was sent to the Swedish authorities based on the Dublin regulation. The Swedish authorities provided a delayed replied and agreed to take back the applicant due to this fact. The applicant contested the Dublin transfer and argued that the Swedish authorities will return him to Syria, thus in violation of the principle of non-refoulement, including an indirect risk of being subject to ill-treatment.

By decision of 9 August 2021, the Court of the Hague allowed the appeal, annulled the contested decision and ordered the State Secretary to take a new decision in the case. The State Secretary appealed against it and contested that it should have conducted further investigations into the question of whether the Swedish authorities are actually deporting third country nationals to Syria and a Dublin transfer therefore leads to indirect refoulement.

The Council of State referred to the CJEU judgement of Abubacarr Jawo v Bundesrepublik Deutschland, when considering that a difference in protection policies in another Member State can lead to a to a violation of Article 4 of the EU Charter. According to the Dutch policy Syrian nationals who are not active supporters of the political regime run a real risk of serious ill-treatment during or after returning from abroad and are thus eligible for asylum in the Netherlands.

 It was noted that that the applicant has submitted a page of a Swedish asylum decision rejecting it with an official translation and has also detailed in his appeal that an appeal against that decision was rejected by the Swedish court. The applicant claimed that the State Secretary should have conducted further investigation into the question of whether the Swedish authorities are actually deporting applicants to Syria and therefore whether transfer to Sweden indirectly leads to a violation of the prohibition on refoulement. The State Secretary argued that the Court of the Hague has erroneously considered that he should make further investigation into the question of whether the Swedish authorities are actually deporting aliens to Syria and transfer therefore leads to indirect refoulement. The State Secretary considered that the applicant has not made it plausible that he indirectly runs a real risk of refoulement in the event of transfer. It further added that the existence of a more restrictive protection policy in the responsible Member State does not in itself mean that there is a shortcoming in the asylum procedure in that Member State. Furthermore, it is for the applicant to raise any shortcomings related to the protection against refoulement in the asylum procedure in the responsible Member State.

The Council of State allowed the appeal of the State Secretary and stated first that it does not consider necessary to stay the proceedings and refer questions to the CJEU, pending the answers to the questions referred to the Court under Case Nos C-254/21, C-297/21 and C-315/21 on the assessment framework in the event of a possible risk of indirect refoulement if the asylum application is rejected in the responsible Member State. Moreover, the Council of State referred to the judgement adopted on the same day with regard to Denmark (link).

According to the Council of State, the State Secretary correctly underlined that the starting point when assessing which Member State is responsible for examining an asylum application, is the assumption that the Member States are not violating the prohibition on refoulement, based on the inter-state principle of mutual trust and the assumption that Member States asylum applicants effective and equivalent protection of the fundamental rights enshrined in the EU Charter, the Refugee Convention and the ECHR.

The Council of State further ruled that the burden of proof to demonstrate a real risk of indirect refoulement lies with the applicant, who has to submit general information to substantiate with sufficient concrete indications that he is not offered international protection in the responsible Member State on the basis of the protection policy, while in principle he does receive it in the Netherlands. In addition, an applicant must add concrete examples to demonstrate that both the administrative authority and the court in the responsible Member State will not protect him against refoulement. When an applicant has met the required burden of proof, then it is for the State Secretary to remove all doubts about a possible risk in the event of transfer.

In the present case, the Council of State ruled that the applicant has not made it plausible that he runs a real risk of inhumane treatment there as a result of the transfer to Sweden and he did not submit any indications to show that the highest Swedish court consider that Syrian applicants can in principle return.