Hungary - Administrative and Labour Court of Győr, 12 October 2016, 17.Kpk.50.196/2016/4

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Headnote: 

The Court quashed the decision of the Office of Immigration and Nationality (OIN) because it failed to carry out a proper establishment of facts as required by the Dublin III Regulation.

Facts: 

The Applicant, a national of Afghanistan, having crossed Greece and Serbia, applied for asylum in Hungary. The Hungarian authorities found a match for his fingerprint in the EURODAC system and issued a take charge request to Greece, which did not respond within the deadline set forth by the Regulation. Following this the OIN declared that Greece was the Member State responsible to examine the Applicant’s claim for asylum. The Applicant challenged the decision.

Decision & Reasoning: 

The Court issued a very short decision, in which it argued the following:

‘It could be concluded during the administrative procedure that the Applicant entered the territory of the EU through Greece illegally. According to Article 28 (3) of the Regulation, if the Member State requested does not respond within the deadline set by the Regulation, it is equivalent to giving a positive response.

However, Article 3 (2) of the Regulation requires a Member State to examine that the Member State responsible to examine the claim for asylum would provide the Applicant with the appropriate reception conditions and conditions to effectively examine the application.

From the decision of the OIN it cannot be deduced that  Article 3 (2) was respected, which violates Section 50 and 72 of the Law on Administrative Procedure as well. The observations submitted by the OIN to the appeal of the Applicant to do substitute the necessary reasoning which should have been part of the administrative procedure.

For these reasons, the OIN’s decision is not fit for substantive revision (…) In the repeated procedure, the OIN will have the duty to apply Article 3 (2) of the Regulation and record its observations relating to this Article in the reasoning of its decision.’ 

Outcome: 

Appeal granted, decision quashed, new procedure ordered.