A1. and A2., an Eritrean couple, applied for international protection in Luxembourg on 7 November 2024. Upon an information request on the basis of the Dublin III Regulation, the Luxembourgish authorities found that Greece had granted refugee status to the applicants on 27 September 2024. The applicants' children were born in Luxembourg in December 2024, and international protection applications were lodged on their behalf on 8 January 2025. On 20 March 2025, the Minister of the Interior notified the couple that their applications had been declared inadmissible under Article 28(2)(a) of the Law A255 of 18 December 2015 on international protection and temporary protection (Asylum Law) and Article 33(2)(a) of the recast Asylum Procedures Directive (APD), because they already benefitted from protection in another EU Member State. The children's applications were refused as unfounded under an accelerated procedure. On 8 April 2025, the applicants appealed the decision of 20 March 2025 to the Administrative Tribunal (Tribunal Administratif).

The applicants argued that despite their refugee status in Greece, the living conditions there seriously infringed their rights and their children´s rights under the Charter of Fundamental Rights of the European Union (the Charter). They also claimed that the Minister´s decision disregarded their children´s rights under the United Nations Convention on the Rights of the Child (UNCRC), specifically the need to consider the best interests of the child under Article 3(1) and the children´s right not to be separated from their parents against their will under Article 9(1).

They stated that their difficulties to find employment and accommodation in Greece prevented their access to government support and medical care, for which a fixed address was needed in Greece. This was especially challenging considering A2´s pregnancy. Additionally, their newborn children did not have refugee status in Greece and thus could not access medical care. Citing several NGO reports, they contended that there were systemic deficiencies in the reception conditions of refugees in Greece, and that by design, the Greek healthcare and social assistance system excluded homeless people and beneficiaries of international protection from its scope. They stated that to ensure the survival of their  expected children, they had travelled to Luxembourg.

The tribunal noted that under Article 28(2)(a) of the Asylum Law (transposing Article 33(2)(a) of the recast APD), the Minister was, at least prima facie, entitled to declare the couple's application inadmissible, since they already benefitted from international protection in Greece, based on  the presumption of safety and adequate treatment under the principle of mutual trust among EU Member States. However, in Bashar Ibrahim and Others v. Bundesrepublik Deutschland, 19 March 2019, the CJEU also acknowledged that this presumption can be rebutted if an applicant produced evidence of systemic  (Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17, 19 March 2019), the tribunal also acknowledged that this presumption can be rebutted if an applicant produced evidence of systemic deficiencies within the state where they were granted asylum which generate a risk of inhuman or degrading treatment under Article 4 of the EU Charter and Article 3 of the European Convention on Human Rights (ECHR). The tribunal held that overriding the presumption of mutual trust required a high threshold, such as extreme material deprivation, and that the applicants had failed to provide sufficient evidence that would demonstrate systemic deficiencies in Greece which met the threshold required. The tribunal acknowledged that, in Greece, beneficiaries of international protection may face difficulties of varying degrees, depending on their particular circumstances, in accessing housing, employment, healthcare, and related services, due in particular to administrative obstacles. However, it held that, on the basis of these elements alone, it could not be concluded that beneficiaries are wholly and systematically deprived of the means of subsistence necessary to meet their most basic needs.

Following, the tribunal examined the applicants' personal situation. It observed that the assessment must also consider the situation of the couple's newborn children, who were particularly vulnerable and in need of greater protection under Article 3 of the ECHR. The tribunal noted that, after being granted refugee status in Greece, the applicants left the country without attempting to obtain housing, healthcare, or work. Although it was not proven such efforts would have failed, the tribunal could not rule out that, if returned, the family (including the four-month-old twins) might face a period of homelessness and lack of medical care beyond their control. The tribunal observed that access to healthcare in Greece requires activation of a social security number (AMKA), which is obtained through employment or proof of residence. The applicants would find difficulties to meet these conditions, since they had demonstrated credible risk of homelessness and lack of access to the job market in Greece. The tribunal also found that beneficiaries of international protection in Greece face significant barriers to legal employment, as working legally requires a social security affiliation number (AMA) that depends on proof of residence, and there is no evidence that the limited exceptions allowing homeless persons to obtain AMKA apply to AMA.  It held that although the applicants were physically able to work, their prospects in the Greek legal labour market were limited by their lack of knowledge of Greek or English, absence of any social or family network in Greece, and the need to care for four-month-old twins.  In light of all these factors, the tribunal concluded that there was a significant risk that, if returned to Greece, the applicants and their children would face homelessness and inadequate access to healthcare beyond basic emergency aid. It further noted that the children, who require frequent medical check-ups for both normal development and due to their vulnerable immune systems, must have reliable access to medical care to protect their development and physical integrity, and that the Luxembourgish authorities had not proven that the NGOs could provide them with such access. Thus, the tribunal held that in view of the children's particular vulnerability, the situation described might have consequences for them which reach the threshold of severity required to be classified as inhuman and degrading treatment under Article 3 ECHR.

In conclusion, considering the best interests of the child under Article 3(1) of the UNCRC and in the absence of any individual guarantee from the Greek authorities regarding appropriate care for the children in the event of a return to Greece in terms of accommodation and access to healthcare, the tribunal upheld the appeal, annulled the Minister's decision and remanded the case for further examination.