H.A., a national of Pakistan, requested international protection in Italy. The Dublin Unit at the Ministry of the Interior ordered his Dublin transfer to Austria, where he had previously requested international protection, but his application had been rejected. He appealed this decision and sought its annulment. The Tribunal of Florence upheld the appeal with reference to the ground of complaint alleging infringement of Article 17 of the Dublin III Regulation and Articles 1 to 4 of the EU Charter of Fundamental Rights (EU Charter) for failure to exercise the option provided for in the discretionary clause, in light of the need to protect the fundamental rights of the applicant. The tribunal acknowledged the situation of insecurity in the applicant’s home area, Khyber Paktunkhwa, and held that applying Article 23 of the Dublin III Regulation would expose him to a real risk of human rights violations because of the risk of return to Pakistan since Austria rejected his application for international protection there (risk of indirect refoulement). Therefore, the tribunal invoked the discretionary clause under Article 17 of the Dublin III Regulation, declaring Italy responsible for examining the asylum application. The Dublin Unit at the Ministry of the Interior appealed the decision before the Court of Cassation on a point of law, arguing that Articles 3.2 and 17 of the Dublin III Regulation had been violated. The Ministry contended that the discretionary clause only applies to family reunification for humanitarian reasons, and since Austria had already accepted responsibility for the asylum application and assessed it, Article 17 was not applicable. Additionally, the Ministry argued that any claim of serious deficiencies in the asylum procedure or reception conditions in the responsible Member State should be exceptional, requiring substantial evidence that challenges the presumption of mutual trust between Member States.

The Court of Cassation, sitting in its United Sections, ruled that the plea was clearly well-founded. It reached this assessment by applying the interpretative criteria established by the CJEU in its judgment in 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 (Joined Cases C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/21, 30 November 2023). In this ruling, the CJEU clarified that, in the absence of systemic deficiencies in the asylum procedure and reception conditions in the Member State otherwise responsible, national courts do not have the authority to review the exercise of the discretionary clause by their competent authorities based solely on a different assessment of the risks associated with returning the applicant to their country of origin, in order to prevent indirect refoulement. At the same time, the Court of Cassation highlighted that the CJEU judgment does not rule out the power of national courts to review the decision not to use the discretionary clause for other reasons, in the context of an appeal against the transfer decision under Article 27 of the Dublin III Regulation.

The Court of Cassation found that the contested measure was inconsistent with the principles established by the CJEU. Specifically, it held that the Tribunal of Florence, without identifying any systemic deficiencies in Austria’s asylum procedure and reception conditions, improperly invoked the discretionary clause to assess a risk of indirect refoulement in the applicant's country of origin based on a different evaluation of the protection available there. This violated the principle of mutual trust and the principle of non-refoulement binding all Member States, as clarified by the CJEU. Consequently, the Court of Cassation annulled the contested decision regarding the upheld plea and referred the case back to the Tribunal of Florence to examine the remaining grounds of appeal.

Moreover, the court referred to key CJEU case law interpreting the Dublin III Regulation, citing relevant judgments including Mehrdad Ghezelbash v Secretary of State for Security and Justice (C‑63/15, 7 June 2016), in Majid Shiri v Bundesamt für Fremdenwesen und Asyl (C-201/16, 25 October 2017), in Federal Republic of Germany v Aziz Hasan (C-360/16, 25 January 2018), in H.A. v Belgium (C-194/19, 15 April 2021), in M.A., S.A. and A.Z. v International Protection Appeals Tribunal and Others (C‑661/17, 23 January 2019) in C.K. and Others v Republic of Slovenia (C-578/16, 16 February 2017), in Abubacarr Jawo v Bundesrepublik Deutschland (C‑163/17, 19 March 2019) in L.G. v State Secretary for Justice and Security (C‑745/21, 16 February 2023) and in AHY v Minister for Justice (C-359/22, 18 April 2024). The Court of Cassation affirmed that, since a Member State is not obliged to use the discretionary clause, an applicant has no right under EU law to compel its use. Additionally, it held that Article 47 of the EU Charter does not prevent a Member State from enforcing a Dublin transfer decision before ruling on an application under Article 17(1) or an appeal against it. According to the Court of Cassation, the CJEU leaves both the scope and source of judicial review to national law, allowing challenges to the decision not to use the discretionary clause during the appeal against the transfer decision. The Court of Cassation affirmed that it has not yet defined the scope of judicial review in appeals against Dublin transfer decisions to another Member State, particularly regarding the examination of the conditions for transfer or the grounds justifying the recognition of national protection. However, it affirmed that the recent caselaw of the CJEU clarified that the existence, nature, and limits of judicial review over the exercise of the discretionary clause, are not governed by EU law, which only prohibits national courts from reviewing the clause to circumvent mutual trust or imposing their own assessment of indirect refoulement. The only exception is where the transfer to a country with no systemic deficiencies in its asylum system may still not guarantee full protection due to the applicant’s vulnerability or the country’s problematic situation. Otherwise, the scope of judicial review regarding the exercise of the discretionary clause is determined by national law.

The Court of Cassation highlighted that the Dublin III Regulation is limited to applications for international protection and does not address national forms of protection. It noted that the Italian legal system provides complementary forms of protection that complement the EU asylum system. The court observed that the humanitarian protection is an extension of the constitutional right to asylum. It reaffirmed the principles established in its jurisprudence, emphasizing that the right to humanitarian protection is a subjective, fundamental right that cannot be downgraded. In this regard, the court affirmed that EU law allows an applicant to challenge a Dublin transfer order on various grounds, including the alleged violation of their right to complementary protection under national law. However, it clarified that this was not applicable in the present case.It affirmed that the court hearing an appeal against  a Dublin transfer decision cannot automatically consider national forms of protection unless the issue is specifically raised by the applicant. The Court of Cassation clarified that allowing such an examination would conflict with EU law, which requires the use of ordinary jurisdictional criteria and limits the use of the discretionary clause to exceptional cases. The court held that the assessment of whether there is a situation where EU law does not provide the same protection as the Italian complementary protection must be case-specific. It requires comparing the level of protection offered by the Italian system with the European standard, taking into account the particular circumstances of the applicant challenging the Dublin transfer because his evaluation is necessary for determining whether the transfer should be allowed in light of the differing protection levels. The court specified that this assessment was impractical in the present case, as the hypothetical reasons for challenging the Dublin transfer have not been provided and cannot be evaluated.

Conclusively, the court set aside the contested measured and referred the case back to the Tribunal of Florence for re-examination by a different composition. It then affirmed the following legal principle:

‘In proceedings challenging Dublin transfer decisions of applicants under Article 27 of the Dublin III Regulation, as well as under Article 3 of Legislative Decree No. 25/2008 and Article 3, letter e-bis) of Decree-Law No. 13/2017, converted with amendments by Law No. 46/2017, the court seized may not examine whether there is a risk, in the requested Member State, of a violation of the principle of non-refoulement to which the applicant would be exposed following their Dublin transfer (or as a result of it) to that Member State based on differences of opinion regarding the interpretation of the substantive conditions for international protection, unless it finds the existence of systemic deficiencies in the asylum procedure and reception conditions in the requested Member State.’