The case concerned a Dublin transfer to Italy of a Syrian applicant and his request to suspend the transfer due to systemic deficiencies in Italy.

The regional administrative court of Bremen court allowed the request to suspend the transfer and noted that the examination conducted by the BAMF was insufficient and raised doubts on the legality of the transfer decision. The court ruled that when it proves impossible to transfer an applicant to the Member State initially designated as responsible to process the application because there are serious grounds to believe that the asylum and reception system present systemic weaknesses posing a risk of inhuman or degrading treatment, then the competence for examining the application continues with the Member State which is identified as competent according to the criteria laid down in Chapter III of the Dublin Regulation.

After having analysed in detailed the principles as derived from the case of the CJEU, namely Abubacarr Jawo v Bundesrepublik Deutschland, CJEU, judgment of 19 March 2019 – Bashar Ibrahim (C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, Mohammad Ibrahim, Ahmad Ibrahim (C‑318/17), Nisreen Sharqawi, Yazan Fattayrji, Hosam Fattayrji v Bundesrepublik Deutschland, and Bundesrepublik Deutschland v Taus Magamadov, and the jurisprudence of the ECtHR, in the case Tarakhel v Switzerland, the regional administrative court ruled that the responsibility for processing the application has passed to Germany.

The court noted that the asylum and reception system in Italy present systemic issues and that the Italian authorities deny the access to the asylum and reception system to Dublin returnees. It considered that Italy is not ready to take back the applicant and mentioned press articles where the German Ministry of the Interior and the French counterpart discuss the issues with the Dublin procedure with regard to Italy. The court also mentioned the jurisprudence in other countries with regard to cancellation/suspension of Dublin transfers to Italy, for example the judgement of 26 April 2023 of the Council of State (Applicant v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), 202207368/1/V1, ECLI:NL:RVS:2023:1654 and Applicant (2) v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), 202300521/1/V1, ECLI:NL:RVS:2023:1655), judgement of 9 June 2023 of the Swiss Federal Administrative Court and statements by the Minister of Justice and the Swiss Secretariat for Migration from May 2023.

The regional administrative court also referred to a ruling of the Higher Administrative Court of Rhine-Westphalia of 5 July 2023 where the later concluded that the time-limited suspension of acceptance of Dublin transfer by Italy is not merely temporary and that the circulars do not mention ant end date for the suspension of the transfers, neither an approximated date nor an anticipated timeframe.  Despite the announcement in the circular of 5 December 2022, no updated information has been shared on the duration of the suspension of Dublin transfers after 8 months.

The regional administrative court ruled that the principle of interstate mutual trust cannot be applied but it is invalidated by the refusal of the Italian authorities to receive Dublin returnees due to the situation with the reception system. It stated that the risk of treatment contrary to the Article 3 of the ECHR cannot be denied as long as the reception system cannot receive Dublin applicants and suspended the Dublin transfer.