Mr. Jawo, a Gambian national, entered Italy by sea and travelled on to Germany, where he applied for asylum on 23 December 2014. As Eurodac indicated that he had already lodged an asylum application in Italy, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) requested on 26 January 2015 that the Italian authorities take him back, but they did not respond to the request. The BAMF rejected Mr. Jawo's asylum application as inadmissible and ordered his removal to Italy. On the day he was due to be transferred, Mr. Jawo was not present at the accommodation centre in Heidelberg where he lived. Based on this, the BAMF informed the Italian authorities in June 2015 that it was not possible to transfer him because he had absconded. Mr. Jawo stated that on the day of the transfer, he went to visit a friend in a nearby town, and no one had warned him he needed to report his absence. On 3 February 2016, a second transfer attempt failed when the applicant refused to board the aircraft scheduled to carry out his transfer. Mr Jawo appealed before the Higher Administrative Court, Baden-Württemberg, Germany (Verwaltungsgerichtshof Baden-Württemberg, referring court) the dismissal of his action for interim relief arguing that he did not abscond, that the BAMF was not entitled to extend the time limit for transfer, and that the transfer to Italy was inadmissible due to systemic flaws in the asylum procedure and reception conditions, within the meaning of Article 3(2) of the Dublin III Regulation.
Against this context, the Higher Administrative Court, Baden-Württemberg decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
- Is an asylum seeker absconding within the meaning of the second sentence of Article 29(2) of [the Dublin III Regulation] only where he purposefully and deliberately evades the reach of the national authorities responsible for carrying out the transfer in order to prevent or impede the transfer, or is it sufficient if, for a prolonged period, he ceases to live in the accommodation allocated to him and the authority is not informed of his whereabouts and therefore a planned transfer cannot be carried out? Is the person concerned entitled to rely on the correct application of that provision and to plead, in proceedings against the transfer decision, that the transfer time limit of six months has expired, because he had not absconded?
- Does an extension of the time limit provided for under the first subparagraph of Article 29(1) of [the Dublin III Regulation] arise solely as a result of the fact that the transferring Member State informs the Member State responsible, before the expiry of the time limit, that the person concerned has absconded, and at the same time specifies an actual time limit, which may not exceed 18 months, by which the transfer will be carried out, or is an extension possible only in such a way that the Member States involved stipulate by mutual agreement an extended time limit?
- Is transfer of the asylum seeker to the Member State responsible inadmissible if, in the event of international protection status being granted, he would be exposed there, in view of the living conditions then to be expected, to a serious risk of experiencing treatment referred to in Article 4 of the [Charter]? Does this question as formulated still fall within the scope of application of EU law? According to which criteria under EU law are the living conditions of a person recognised as a beneficiary of international protection to be assessed?’
To the first question, the CJEU held that applicants abscond when they deliberately evade the reach of the national authorities responsible for carrying out their transfer to prevent it. The court indicated that it must be assumed that this is the case when the transfer cannot be carried out because the applicant has left the accommodation allocated to him without informing the authorities of his absence, given that he had previously been informed of this duty. In this regard, the court noted that the applicant preserves the possibility of showing that he did not inform the authorities of such absence for valid reasons, rather than to evade their reach. To reach this conclusion, the court first recognised that the Dublin III Regulation does not define the concept of absconding, and then interpreted it based on its wording and its context and purpose in the regulation.
On whether an applicant may rely on and plead in appeal proceedings challenging the transfer decision that the six-month transfer time limit has expired because he did not abscond, the CJEU replied in the affirmative, referring to the conclusions in Shiri (C‑201/16, 25 October 2017).
To the second question on the extension of the six-month time limit, the CJEU ruled that the second sentence of Article 29(2) of the Dublin III Regulation must be interpreted to mean that, to extend the transfer time limit by a maximum of 18 months, it suffices that the requesting Member State informs the Member State responsible, before the expiry of the six-month transfer time limit, that the person concerned has absconded and specifies, at the same time, a new transfer time limit. To reach this conclusion, the court noted that in contrast to Article 29(1) of the Dublin III Regulation, which referred to previous consultation between Member States, Article 29 (2) does not do so.
To answer the third question, the court relied on CJEU considerations in the case of N. S. and Others, (C‑411/10 and C‑493/10, 21 December 2011) and the ECtHR findings in M.S.S. v Greece and Belgium, (Application No. 30696/09, 21 January 2014). First, it held that, although the second and third subparagraph of Article 3(2) of the Dublin III Regulation codifying N. S and Others, ruled out a transfer due to a risk of inhuman or degrading treatment in the asylum or reception conditions of the Member State responsible, the absolute nature of the prohibition in Article 4 EU Charter applied as for risks arising at the very moment of the transfer, during the asylum procedure or following it. The court emphasized that the principle of mutual trust depends on the guarantee that the application of the Dublin system will not, at any stage and in any form, entail a serious risk of infringing Article 4 of the EU Charter. Based on this, the CJEU ruled that the living conditions that the applicant could be expected to encounter as a beneficiary fall within the scope of Article 4 of the EU Charter.
Recalling MSS v Belgium, the CJEU ruled that to fall within the scope of Article 4 of the Charter, the situation to be faced by the applicant in the responsible Member State must be of extreme material poverty. In reaffirming this, the court clarified that the lack of family support in dealing with a Member State's social system, when compared to that of nationals, does not reach such a threshold. However, an applicant may be able to demonstrate the existence of exceptional circumstances that are unique to him and mean that, in the event of transfer, he would be, because of his particular vulnerability, irrespective of his wishes and personal choices, in such a situation of extreme material poverty.
As to the evidence required to preclude a transfer under Article 4 of the Charter, the CJEU finally emphasized the need for objective, reliable, specific, and properly updated information.