Mutual Trust

Asylum

Tribunal Central Administrativo do Sul

Tribunal Central Administrativo do Sul

1301/19.0BELSB

14th May 2020

Not available

Not applicable.

Regulation (EU) No 604/2013; Directive 2013/32/EU
Brahim Samba Diouf, case C-69/10; N.S., cases C-411/10 and C-493/10; C.K. and Others, case C-578/16 PPU; Mukarubega, case C-166/13, Ghezelbash, C-63/15; Abdullahi, C-394/12

M.S.S. vs Belgium and Greece, Application no. 30696/09 (Decision of 21st January 2011) and Tarakhel vs Switzerland, Application no. 29217/12 (Decision of 14th November 2014); Salah Sheekh v. The Netherlands, Application No. 1948/04 (Decision of 11 January 2007); NA v. United Kingdom, Application No. 25904/07 (Decision of 17 July 2008); Abdolkhani and Karimnia v. Turkey, Application No. 30471/08 (Decision of 22 September 2009); Fg v. Sweden, Application No. 43611/11 (Decision of 23 March 2016)

Right to prior hearing; systemic deficiencies; discretionary clause

Whether the omission of an individualised and careful analysis of the asylum seeker's situation by the competent authorities allows a court to substitute itself for this task.

NO

Not applicable.

Law 27/2008 («Asylum Law») 

An asylum seeker form from Guinea-Bissau, who entered the EU from Italy, makes a request for international protection in Portugal with the Foreigners and Borders Service (SEF - Serviço de Estrangeiros e Fronteiras).
In that request, he claims he does not want to return to Italy because of the poor treatment received there. However, the SEF does not allow him to present the entire collection of reasons and facts potentially hindering the issuance of the transfer decision and it also does not determine whether such facts are true or not, deciding to return the asylum seeker to Italy.
Disappointed with the SEF decision, the asylum seeker files an appeal before before the Lisbon Administrative Court, which ruled in his favour. The SEF appeals the judgment before the Tribunal Central Administrativo do Sul.

The Tribunal Central Administrativo do Sul dismissed the appeal and confirmed the contested decision.
First, by not allowing the applicant to present the entire collection of reasons and facts potentially hindering the issuance of the transfer decision, the SEF violated his right to a prior hearing. The Tribunal Central Administrativo do Sul concluded that the SEF was required to investigate the facts more carefully and in depth in relation to the circumstances mentioned by the applicant, which indicated the evasion of healthcare and accommodation services by the Italian authorities. The Tribunal Central Administrativo do Sul concluded that the omission of an individualized and careful analysis of the asylum seeker's situation not only contradicts the entire spirit that presides over the existence of the Dublin Regulation but also disrespects the Charter. It states that the said investigation was crucial in light of the EU principle of non-refoulement, which is derived from Article 4 of the EU Charter and Article 3 of the ECHR and results in the prohibition of the transfer of any person to another Member State if such a transfer carries the risk of torture or humane or degrading treatment. The risk of violation of Article 4 of the Charter should have been assessed completely and individually, covering not only the risk of direct return but also the risk of the transfer itself.
Second, the Tribunal Central Administrativo do Sul found that the SEF was wrong in assuming that the transfer decision was absolutely binding. In addition to the situations of systemic failures in the asylum procedure and in the reception conditions of applicants described in Article 3 (2) of the Dublin III Regulation, the sovereignty clause of Article 17 clearly stipulates, even as a “safety valve” and favouring the position of the asylum seeker, the possibility of a Member State assume, within the scope of the exercise of discretionary power, responsibility for deciding on the request for international protection, regardless of the established criteria and rules.
Third, for the Tribunal Central Administrativo do Sul, there remained clear, evident and demonstrated evidence of the existence of systemic failures in the Italian reception system, which exposed the applicant to a serious and real riskof suffering inhuman and degrading treatment as defined by Article 3 ECHR and Article 4 of the Charter. These flaws are derived both from the current modelling of the Italian legal system and from the manifest insufficiency of material conditions. These assertions resulted from reports, descriptions, information, conclusions and news conveyed and disseminated by multiple NGOs, as well as by international institutions dedicated to monitoring, processing and analysing legal aspects and the practical implementation of the entire international asylum system. The Tribunal Central Administrativo do Sul particularly quotes the country report on Italy of April 2019 made by ASGI (Associazione per gli Studi Giuridici sull'Immigrazione). Therefore, in accordance with Article 3(2) of the Dublin III Regulation, the transfer of the applicant to Italy should not have been ordered.
In view of the above, the Tribunal Central Administrativo do Sul agrees with the asylum seeker and prevents his return to Italy.

There is a direct relationship with the Charter, in that the Tribunal Central Administrativo do Sul cites some of its provisions to justify its decision. Indeed, according to the national court, the absence of a fair and individualised procedure for granting asylum, or the impediment of access to it, may constitute an infringement of Article 4 of the EU Charter or of Article 3 of the ECHR, leading to the annulment of the decision to transfer an asylum seeker in the field of the Dublin Regulation. The applicant for international protection claimed that as well as not wanting to return to Italy, ‘(...) when I had any pain, they never took me to the doctor, the refugee camp where I was staying in Avelino was closed and I was put out on the street, where I lived for 20 days. Even when I was in the camp, I didn't do anything, I didn't study’. The SEF needed to carry out a more thorough and careful investigation into the circumstances mentioned by the applicant, which indicated that the Italian authorities were withholding health care and accommodation. Such an enquiry was crucial by virtue of the principle of non-refoulement, derived from Article 4 of the Charter and Article 3 of the ECHR, which constitutes an absolutely insurmountable barrier, resulting in the prohibition of the transfer of any person to another state if that transfer entails the risk of torture or of humane or degrading treatment. Thus, the omission of an individualised and careful analysis of the asylum seeker's situation not only goes against the whole spirit of the Dublin Regulation but also the aforementioned articles. 

See previous point.  

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

Not applicable. 

There is, in particular, a vertical dialogue, in that the national court, to justify its decision, uses both the jurisprudence of the Court of Justice of the European Union and the jurisprudence of the ECtHR. Specifically with regard to the CJEU, and with regard to the principle of non-refoulement, the judgement handed down by the Grand Chamber on 21/12/2011 in joined cases C-411/10 and C-493/10, N.S. v Secretary of State for the Home Department, and the judgement handed down on 16/02/2017 in case C-578/16 PPU, C.K. v Republika Slovenija, are cited.

Not applicable.

Not applicable.

Not applicable.

Not applicable.

Not applicable.

Afonso Brás, Lisbon Public Law Research Centre