Mutual trust and asylum

Asylum

Tribunal Central Administrativo Sul

South Central Administrative Court

137/21.2BELSB

31.08.2021

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This decision, which concerns an asylum application, deals with the question of whether or not a citizen of a non-EU country who has applied for asylum in Italy should return to that country, particularly if he is in another EU country making another asylum application, because he claims that he was subjected to degrading treatment in Italy.

The case applies Regulation (EU) no. 604/2013, which establishes the criteria and mechanisms for determining responsibility for examining applications for international protection lodged in the Member States. Following the case-law of the CJEU, it considers that where the court or tribunal hearing an appeal against a transfer decision or against a decision declaring a new application for international protection inadmissible has evidence which is submitted by the applicant or which constitutes manifest facts to show that there is a risk of inhuman or degrading treatment in the other Member State, that court or tribunal must assess whether there are systemic or generalized deficiencies, or whether they affect certain groups of persons. Nevertheless, according to the same case-law, such deficiencies are only contrary to the prohibition of inhuman or degrading treatment if they are of a particularly high gravity, which depends on all the facts of the case; which in the present case was not considered to be the case at all, since it was not in evidence in the case-file that during the applicant's residence in Italy the asylum seeker had been subjected to inhuman or degrading treatment, or that she would be subjected to such treatment.

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Law no. 27/2008, of 30 June, which establishes the conditions and procedures for granting asylum or subsidiary protection and the status of asylum seeker, refugee and subsidiary protection, transposing into national law Council Directives 2004/83/EC of 29 April and 2005/85/EC of 1 December.

A citizen of Guinea Bissau, who had applied for asylum in Italy in 2015, applied for asylum in Portugal five years later. When he applied in Portugal, he claimed that he had not been treated with dignity in Italy. The Portuguese Immigration and Borders Service - SEF - rejected the application, so the citizen brought the case to the Central Administrative Court, which also rejected his appeal. As a consequence, the citizen brought the same case to the South Central Administrtive Court, which he asked for the application to be upheld. The court, however, did not agree and ordered him to return to Italy.

The Court's conclusions were as follows:

i. If the existence of a previous asylum application made in another Member State is established, the special procedure for determining the state responsible for examining the asylum application must be initiated, which in this case was found to be Italy.

ii. Since Italy has accepted this responsibility, it is up to it to decide on the respective transfer of the applicant for international protection, and nothing has been invoked to justify, under the terms of Article 3(2) of Regulation (EU) 604/2013, that another Member State, namely the Portuguese State, should be responsible for this analysis and decision.

iii. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June, as was already the case with Regulation (EC) No 343/2003, establishes criteria and mechanisms for determining responsibility for examining applications for international protection lodged in Member States. 343/2003, which establishes the criteria and mechanisms for determining responsibility for examining applications for international protection lodged in the Member States, pursues two essential objectives: on the one hand, it aims to guarantee effective access to procedures for determining refugee status, without jeopardising the speed with which asylum applications are processed and ensuring legal certainty and security at EU level; and, on the other hand, it aims to prevent the misuse of asylum procedures, in the form of multiple applications lodged by the same applicant in several Member States, with the aim of extending their stay there, a reality commonly referred to as asylum shopping.

iv. Also according to the case law of the Court of Justice of the European Union, when the court hearing an appeal against a transfer decision or a decision declaring a new application for international protection inadmissible has elements presented by the applicant, or which constitute notorious facts, to demonstrate the existence of a risk of inhuman or degrading treatment in the other Member State, that court must assess the existence of deficiencies, whether systemic or generalised, or affecting certain groups of people.

v. Even so, according to the same case law, such shortcomings are only contrary to the prohibition of inhuman or degrading treatment if they are particularly serious, which depends on all the facts of the case; which in this case is not the case in the slightest, since the case file does not show that the asylum seeker has been subjected to inhuman or degrading treatment while residing in Italy, nor that he ever will be.

The Charter, in particular Article 4, was invoked for the purpose of understanding, in the light of European Union law, what is to be understood by the prohibition of torture and inhuman or degrading treatment or punishment.

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In this case, the technique was one of consistent interpretation, insofar as the decision is aligned with what is established in the European Union Regulation cited, with the Charter of Fundamental Rights of the European Union, as well as with the case law of the Court of Justice of the European Union.

As mentioned above, the Court is in line with both CJEU case law and previous decisions on the question of whether, when a court hearing an appeal against a transfer decision or a decision declaring a new application for international protection inadmissible has elements presented by the applicant to demonstrate the existence of a risk of inhuman or degrading treatment in the other Member State, it must assess the existence of systemic or generalised deficiencies, or those affecting certain groups of people.

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In this case, and by using the aforementioned techniques, the aim was to solve a presumed judicial conflict (namely by reviewing the decision of the previous court) with regard to the guarantee of fundamental rights provided for in the CFREU.

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Tiago Fidalgo de Freitas, Lisbon Centre for Research in Public Law (CIDP)