The applicant, a national of Guinea, requested international protection on 25 November 2024. Due to doubts regarding his minority, the authorities ordered a medical examination which concluded that the applicant was, at least, 23 years of age. The applicant appealed against the decision terminating his guardianship and waited to retrieve his passport from the guardianship office.
On 24 December 2024, Belgium requested the Spanish authorities to take charge of the applicant pursuant to Article 13.1 of the Dublin III Regulation, which they agreed to do. Consequently, on 22 April 2025, the Commissioner General for Refugees and Stateless Persons (CGRS) rejected the application for international protection.
On 25 April 2025, the applicant appealed before the Council for Alien Law Litigation (CALL), requesting the suspension of the order to leave the territory and the decision to transfer him. He argued that the CGRS had not considered the current doubts regarding his minority and had not acknowledged the existence of a passport that proved that minority. Consequently, the applicant argued that the CGRS should have applied Article 8 of the Dublin III Regulation, regarding the responsible Member State to examine applications lodged by unaccompanied minors.
The CALL ruled that the CGRS had not considered the vulnerability or possible vulnerability of the applicant as an unaccompanied minor, especially considering that the bone tests relied upon were not surrounded by sufficient guarantees, as established by the ECtHR. Consequently, it suspended the transfer order. To suspend the transfer, the CALL clarified that 3 conditions must be met: the decision must be of extreme urgency, it must constitute a serious plea, and it must be considered a serious harm that cannot be repaired.
Regarding the first condition for suspension (extreme urgency) it was uncontested by the CALL. The council argued that the applicant was detained in preparation of a removal, and the execution of the transfer order was imminent, which amounted to extreme urgency.
The second condition (serious plea) was also satisfied. In that regard, the CALL referenced the CJEU's ruling in Jawo (19 March 2019, C-163/17), where the court recognised that even though the Dublin system assumes Member States uphold fundamental rights, serious systemic failures in a state may risk violating those rights for applicants. In this case, the CALL noted that the CGRS had failed to consider the ECtHR's judgment in F.B. v. Belgium, which found that the decision-making process for discontinuing care of an unaccompanied foreign minor in Belgium lacked sufficient safeguards under Article 8 of the Convention. While F.B. did not directly concern the determination of the State responsible for the asylum application, the CALL considered that the CGRS should have taken it into account when assessing the applicant's case. Specifically, the CGRS did not address potential risks of inhuman or degrading treatment (under Article 3 of the ECHR) during the transfer, despite the applicant mentioning the existence of a passport and a pending guardianship appeal. Consequently, the CALL ruled that the CGRS had failed to consider the applicant's potential vulnerability as an unaccompanied minor, which was proved by the existence of his passport, which was still at the guardianship office.
The third condition, which concerned the risk of serious harm that cannot be repaired, was also met. The applicant's case involved significant human rights concerns, particularly Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment. Given that fundamental human rights, such as the protection of minors and freedom from inhuman treatment, were at stake, the CALL ruled that enforcement of the contested decision would result in irreparable harm to the applicant.
Considering all the above, the CALL concluded that all the conditions necessary for granting the suspension were met. The decision to refuse residence and transfer the applicant was suspended and the CGRS was ordered to re-examine the conditions under which vulnerable applicants, such as this one, would be received in Spain.