A family had arrived in Italy with a visa, and then travelled on to Germany, where they had applied for international protection. The Federal Office for Migration and Asylum (BAMF) dismissed their applications and decided to transfer them to Italy under the Dublin III Regulation.

The Administrative Court annulled the transfer decisions, stating that the applicants were at risk of inhuman or degrading treatment within the meaning of Article 4 of the EU Charter and Article 3 of the ECHR if transferred to Italy.

BAMF appealed that judgment to the Higher Administrative Court of North Rhine-Westphalia.

The Higher Administrative Court stated that the asylum system and reception conditions in Italy showed systemic deficiencies in accordance with article 3(2) of the Dublin III Regulation, since the Italian authorities deny Dublin returnees admission and access to the asylum procedure for an indefinite period of time. The court deemed that this situation entailed a risk of inhuman or degrading treatment within the meaning of Article 4 of the Eu Charter, since the Italian authorities denied Dublin returnees access to the asylum procedure and reception as a whole.

Furthermore, the court stated, that, the letters (circular) of the Italian authorities dated 5 and 7 December 2022, concerning a lack of capacity in reception facilities, did not constitute a mere request for a suspension of transfers, but a refusal to accept Dublin returnees for an indefinite period of time. Moreover, the suspension of the acceptance of transfers is not temporary. The circulars do not specify an end date for the suspension of transfers, nor do they specify an approximate or estimated timeframe. The court noted that for already six months, the Italian authorities did not provide further information on the duration of the suspension of transfers, despite the announcement in the circular of 5 December 2022.

In view of the above, the Higher Administrative Court of North Rhine-Westphalia rejected the appeal and upheld the lower court’s decision to annul the Dublin transfer decisions.