The case concerned the reopening of the case following referral for preliminary ruling submitted before the CJEU on 22 June 2022 by the Court of the Hague seated in Hertogenbosch, case Applicant v State Secretary.

In the preliminary ruling of 29 February 2024, the CJEU ruled that a Dublin transfer must not take place if there are substantial grounds for believing that the applicant would, during or after the transfer, face a real risk of being subjected to pushbacks or detention that would place the person in a situation of extreme material poverty which would amount to inhuman or degrading treatment.

In the follow up after the CJEU judgement, the Court of the Hague seated in Hertogenbosch noted that the principle of interstate mutual trust is divisible as it relates to the period preceding a transfer and the period following a transfer, and that pushbacks and (border) detention practices do not automatically prevent a Dublin transfer. The CJEU explained that national authorities, in certain circumstances, must investigate upon their own initiative whether public information provides indications that the applicant will, after transfer, be confronted with system deficiencies in the asylum procedure and/or reception that could lead to a violation of Article 4 of the EU Charter, thus meeting the Jawo threshold. The Court of the Hague stated that in view of the CJEU judgment of 29 February 2024, the previous case law on which held that the interstate principle of mutual trust is the starting point in the assessment and that the presumption be refuted exclusively by the applicant, can no longer be the assessment framework in all cases. 

The Court of the Hague also noted that according to the CJEU judgment the information gathered about the asylum procedure and reception prior to a transfer do not absolutely preclude a transfer and do not in themselves constitute a risk of ending up in a situation contrary to Article 4 of the EU Charter after the transfer. However, if there are serious shortcomings in the asylum procedure and the reception conditions or the applicant’s statements indicate such shortcomings, the Member State concerned must, if necessary ex officio, examine whether this information gives rise to indications that such serious shortcomings will also occur after transfer and whether these systemic deficiencies may result in inhuman or degrading treatment contrary to Article 4 of the EU Charter.

The Court of the Hague referred to the CJEU judgment in the case DG (C‑254/21), XXX.XX (C‑297/21), PP (C‑315/21), GE (C‑328/21) v CZA (C‑228/21), Ministero dell’Interno, Dipartimento per le libertà civili e l’immigrazione – Unità Dublino (30 November 2023),  and precisely to the importance of the personal interview referred to in Article 5 of the Dublin Regulation and that the personal interview is also a procedural guarantee that must be provided. However, the Court of the Hague stated that in the circumstances of the present case the personal interview had a very limited importance since the applicant stated that he had been the victim of pushback three times before coming to the Netherlands and that he had been unlawfully detained. This previous violation of fundamental rights, about which he stated in the registration interview, did not interfere with the principle of interstate trust in the context of the Dublin procedure and the presumption that the applicant will be admitted to the asylum procedure in accordance with EU law after the transfer and that he will be granted reception facilities during this asylum procedure.

According to the Court of the Hague, the applicant cannot base previous violations on his request to prohibit the transfer in connection with his fear of ending up in a situation contrary to Article 4 of the EU Charter after transfer, unless his statements indicate systematic deficiencies in the asylum procedure and unless objective and publicly available information from authoritative sources shows that the deficiencies are of large scale and indicate the circumstances in which he will find himself after transfer.

The Court of the Hague clarified that the assessment of legality of the transfer is mainly focused on the interstate principle of mutual trust between Member States and not on the question whether the applicant himself trusts that his fundamental rights will be respected upon the transfer. The Court of the Hague took note that the State Secretary submitted in his statements and at the hearing information on whether in view of public information about pushbacks and detention practices, there are indications that a violation of Article 4 of the Charter is imminent after transfer. The Court of the Hague stated that the State Secretary, when conducting the assessment cannot confine himself to hearing the applicant and assessing the facts and circumstances presented by the applicant but must - in addition and on his own initiative - investigate whether there are possible structural shortcomings in the asylum procedure and the reception facilities before deciding on the transfer decision. According to the Court of the Hague, the State Secretary was not unaware of the systematic and long-term violations of fundamental rights by the Polish border authorities, or at least cannot be unaware of them.

The Court of the Hague concluded that it cannot confirm the transfer decision, but it referred the case back for re-examination by the State Secretary and stated that it is up to the later to provide adequate reasons when preparing the decision, so that the applicant is also fully able to formulate grounds for appeal. The contested decision was annulled, and the State Secretary ordered to further investigate in order to carefully decide on the transfer, in a way that the court, in a potential appeal, can determine that the State Secretary has fulfilled its obligation to conduct further investigations and to fully enable the applicant to provide adequate grounds for a potential further appeal.