The case concerned a Syrian applicant who contested the State Secretary decision of 18 October 2022 not to process his application because Bulgaria was considered the responsible Member State. The first appeal before the court of the Hague was rejected as unfounded. The applicant appealed further before the Council of State which confirmed the lower court decision and considered that the principle of mutual trust between Member States can be applied with respect to the Dublin transfer to Bulgaria.

The applicant alleged that he risks being exposed to pushbacks and that he would not have access to the asylum procedure in case of return to Bulgaria. He relied on Article 3 of the ECHR and Article 4 of the EU Charter and mentioned the AIDA Country Update Poland and other sources which mention the issue of pushbacks in Bulgaria. The Court of the Hague noted that the Bulgarian authorities have accepted the take back request from the State Secretary and promised to process the asylum application in full compliance with the CEAS. The court noted that the sources mentioned by the applicant do report on pushbacks happening at the borders and inland on a large scale and for some time. The court reiterated that its consideration that pushbacks are to be seen in general as a fundamental system error in the asylum procedure within the meaning of Article 3, second paragraph, of the Dublin Regulation, which reaches the particularly high threshold of seriousness, but according to the court it does not appear from the publications cited by the applicants that Dublin returnees will also have to deal with this. According to the court of the Hague, the situation in Bulgaria is not comparable with the situation in Croatia, which the Council of State assessed in the judgments of 13 April 2022, ECLI:NL:RVS:2022:1042 and ECLI:NL:RVS:2022:1043. 

In the second appeal, the Council of State noted that the sources cited by the applicant mention direct and indirect pushbacks happening only at the sea, and the information was not contradicted by the applicant. Also, it noted that these reports do not mention that Dublin returnees are facing pushbacks, thus the Council of State concluded that the information about the situation of asylum seekers does not automatically apply mutatis mutandis to the situation of Dublin applicants and it is insufficient to cast doubt on the consistent picture that emerges from those reports.

The Council of State corroborated the information in the reports with information from the State Secretary, according to which Dublin returnees are transferred to the Sofia City Airport after consultation between the Secretary of State and the Bulgarian authorities. Therefore, the applicant did not make it plausible that pushbacks also take place outside the border area. Based on this information, the Council of State concluded that the lower court rightly considered that Dublin applicants run no real risk of falling victim to pushbacks in Bulgaria.

With regard to access to the reception system, the Council of State reiterated that even if there are no serious fears of systemic errors in the asylum procedure or the reception conditions in the Member State responsible for examining the asylum application, an applicant can only be transferred under the Dublin Regulation if it is precluded that such a transfer would entail a real and proven risk that the applicant will be subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter and Article 3 of the ECHR (see Abubacarr Jawo v Bundesrepublik Deutschland, 19 March 2019). The burden of proof lies with the applicant who claimed to have been mistreated by various persons in Bulgaria, but it does not result that he has complained about such situations. The applicant further claimed that he was not informed about his asylum application and that he did not receive a decision. It has therefore not been established whether the Bulgarian authorities have arrived at a substantive assessment of the asylum application of the foreign national or whether the procedure has ended prematurely because the applicant has left (Article 28(1) of the recast APD).

The Council of State mentioned that preliminary questions have been submitted by the District Court of The Hague, seated in Hertogenbosch, in the judgment of 15 June 2022 on the (in)divisibility of the interstate principle of mutal trust. However, it considered that the present case does not need to be adjourned pending the judgement of the CJEU on the preliminary ruling because the Council of State referred to the previous case law, precisely Abubacarr Jawo v Bundesrepublik Deutschland, 19 March 2019 and C.K. and Others v Republic of Slovenia (Republika Slovenija), 16 February 2017.

The Council of State ruled that despite shortcomings in the asylum system in Bulgaria, it was not proved that there is a real risk for Dublin returnees in general or for the applicant in particular. The appeal was rejected.