Mutual Trust

Asylum

Supremo Tribunal Administrativo

Supreme Administrative Court

0115/20.9BELSB

4th February 2021

Not available

Not applicable

MSS vs Belgium, CE:ECHR:2011:0121JUD003069609.

International protection; non refoulement; asylum request.

If the existence of strong migratory pressure in a Member State can serve as an indication of a presumption that an applicant for international protection who must be transferred there will be the victim of “systemic failures” with the extreme seriousness that is the prerequisite for application of the safeguard clause in Article 3(2) of the Dublin III Regulation, or subject to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

NO

Not applicable

Law 27/2008 («Asylum Law») 

Mr. A, a citizen of Gambia, filed an appeal with the Lisbon Administrative Court against the decision of the Foreigners and Borders Service (SEF - Serviço de Estrangeiros e Fronteiras) to return him to Italy which deemed inadmissible his international protection request on the grounds that Italy was the responsible State for its examination.

According to the applicant, the existence of strong migratory pressure in Italy constituted a serious indication that he would be the victim of “systemic failures” with the extreme gravity that is presupposed for the application of the safeguard clause contained in Article 3 (2) of the Dublin III Regulation, or subject to inhuman or degrading treatment within the meaning of article 4 of the EU Charter.

Since the Lisbon Administrative Court dismissed the applicant’s action, he filed an appeal with the Central Administrative Court of the South (TCAS), which, by judgment of 10/9/2020 upheld the appeal.  The SEF appealed this judgment against the Supreme Administrative Court.

The Supreme Administrative Court found that the applicant never claimed to have been (or to be at risk of being) subjected to any persecution or inhuman or degrading treatment in Italy. On the contrary, in his statements to SEF, he explicitly stated that he was provided accommodation and given the right to appeal (effectively) against the decisions that had denied him international protection.
The national court recognized that the Administration is not limited, in its inquisitive activity, by the declarations of the person concerned if, otherwise, it has serious signs of danger that, with the expected transfer, the latter will suffer inhuman or degrading treatment in the country of destination. However, quoting its previous case law concerning Dublin transfers to Italy, Supreme Administrative Court stressed that it consistently ruled that it is not possible to conclude that, regardless of the strong migratory pressure observed in Italy, the applicant for international protection has been, or will be, subject to “systemic failures,” including the extreme severity required for the application of the safeguard clause under Article 3(2) of the Dublin III Regulation, or subjected to inhuman or degrading treatment as defined in Article 4 of the Charter. In any case, the real and concrete experience reported by the applicant as he lived in Italy for almost 3 years serves as an indication of the non-existence, in this case, of the danger of inhuman and degrading treatment.
By referring to the CJEU judgment in Jawo, the Supreme Administrative Court stressed that the threshold of extreme gravity that is prerequisite for the application of the safeguard clause contained in Article 3(2) of the Dublin III Regulation is only achieved when the indifference of the authorities of a Member State results in a person completely dependent on public support finding themselves, regardless of their will and personal choices, in a situation of extreme material deprivation, which does not allow them to meet their most basic needs, such as, in particular, food, washing and accommodation, and which undermines their physical or mental health or places them in a state of degradation incompatible with human dignity, and which does not fall within the scope of situations that, although characterized by great precariousness or a strong degradation of the living conditions of the person in question, do not involve extreme material deprivation that places the person in such a serious situation that it can be equated with inhuman or degrading treatment.

Furthermore, as the country of destination of the transfer is an EU Member State, the principle of mutual trust imposes a presumption of treatment of asylum seekers in accordance with EU law and with the fundamental rights currently in force, which further removes the requirement for further investigative activity, or its justification, unless in the face of strong and concrete evidence to the contrary, which are not present here. Furthermore, Italy was (and is) also obliged to comply with the norms of European law and international law that prohibit refoulement.

Since the proceedings, in this case, do not show any serious and concrete evidence that the applicant would suffer inhuman or degrading treatment as defined in Article 4 of the Charter as a result of his transfer to Italy, there was no need for any additional investigative activity by the SEF before the issuance of the transfer decision. Therefore, there was no procedural investigative deficit affecting the validity of the contested act that ordered their transfer.

There is a direct relationship with the Charter in that the national court cites some of its provisions to justify its decision. For the Supreme Court, taking into account ‘inhuman or degrading treatment’ within the meaning of Article 4 of the Charter, a high threshold of seriousness is only reached when the indifference of the authorities of a Member State results in a person who is completely dependent on public support finding himself, regardless of his will and personal choices, in a situation of extreme material deprivation, which does not allow him to meet his most basic needs, such as, in particular, feeding, washing and having accommodation. This does not include situations which, although characterised by great precariousness or a severe deterioration in the living conditions of the person concerned, do not involve extreme material deprivation which places the person in a situation of such severity that it can be equated with inhuman or degrading treatment. To reach this reasoning, and as already mentioned, the Supreme Court cites the CJEU judgment in Jawo (see point Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts).

The above applies in exactly the same way in this case, but with reference to Article 3 of the ECHR. To reach this conclusion, the Supreme Court cites case law from the ECtHR (see Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)).

Consistent interpretation, insofar as the court uses decisions from the ECtHR and the CJEU to justify its own, which, consequently, is in line with what follows from that jurisprudence.

There is an horizontal dialogue in that he Court, to justify its decision, cites previous case-law of its own on the same matter.   

There is, in particular, a vertical dialogue, in that the national court, to justify its decision, uses the jurisprudence of both the CJEU and the ECtHR. Specifically with regard to the CJEU, and with regard to the correct interpretation of Article 4 of the CFREU, the Supreme Court cites the Judgment of the Court in Jawo. The same can be said of the ECtHR, but with reference to Article 3 of the ECHR, in whose respect the Supreme Court cites the ECtHR Judgement of 21/01/2011, M.S.S. v. Belgium and Greece, CE:ECHR:2011:0121JUD003069609.

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Afonso Brás, Lisbon Public Law Research Centre

1.    Supremo Tribunal Administrativo/Supreme Administrative Court, Decision no. 0115/20.9BELSB of 04th February 2021.