Portugal - A v. Immigration and Borders Service, No. 61/20.6BELSB, 2 July 2020

Country of Decision:
Country of Applicant:
Date of Decision:
02-07-2020
Citation:
A. v IBS [2020] 61/20.6BELSB
Court Name:
Central Administrative Court
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Headnote: 

The Court concluded that Italy had already accepted the take back request and therefore Portugal should proceed with the applicant’s transfer in accordance with the Dublin Regulation III. Since Italy had already rejected the applicant’s first request for international protection there, it should be the one responsible for returning the applicant back to their home country.

As the applicant is not a vulnerable person, the transfer order to Italy does not violate the non-refoulement principle.

Facts: 

The applicant had already requested international protection from Italy twice  before requesting international protection from Portugal in 2019. Following the application, the Portuguese Immigration and Borders Service formulated a take back request to Italy, which did not reply for 2 consecutive weeks, so Portugal considered that the request was accepted. On these grounds, the National Director of the Immigration and Borders Service declared the inadmissibility of the applicant’s asylum request.

Decision & Reasoning: 

The Court ruled that this did not correspond to a situation of determination of the responsible Member State to assess the international protection request, since the Italian Government had already rejected the applicant’s request for international protection. Portugal should therefore transfer the applicant to Italy, so the decision that was made by the latter could be enforced.

According to Article 3 Dublin Regulation III (DRIII), each international protection request should only be assessed by a single Member State, determined by the application of the criteria in Chapter III of the DRIII. In this case, the applicant’s request had already been decided by the Italian authorities, leading to its rejection, thus the applicant does not have the right to renew that request before Portuguese authorities.

Portugal should submit a take back request to the Member State that has initially rejected the applicant’s request for international protection. According to Article 18 (1, d) and Article 24 (2) and (4) DRIII, the first Member State towards which the applicant had formulated an international protection request is obliged to have him back into its territory, even if the initial request has already been officially rejected.

By not replying to Portugal’s take-back request, Italy accepted it, according to Article 25 (1) and (2) DRIII. Article 37 (2) of the Law 27/2008 establishes that in this context the National Director of the Immigration and Borders Service has 5 days to declare the inadmissibility of the applicant’s request.

If there is a risk of inhuman and degrading treatment following the applicant’s transfer to Italy, Portugal should not proceed with this transfer and should therefore return the applicant to their home country. Otherwise, it would be infringing the non-refoulement principle. However, since the applicant is not considered to be vulnerable and did not report any issues regarding Italy’s asylum reception conditions, the Court considered this would not be the case.

Outcome: 

The Court ruled that the applicant’s request should be considered inadmissible according to the DRIII.

After the end of the Covid19-related temporary and exceptional measures, the applicant should be returned to Italy.

Observations/Comments: 

Italy’s asylum reception and accommodation practices have been previously considered by the Central Administrative Court of the South on the I. v. Immigration and Borders Service, 14 May 2020 No. 2364/18.0BELSB case as a violation of ECHR and CFREU provisions.

Other sources cited: 

Domestic Case Law Cited

Portugal: M. v. Immigration and Borders Service, 28 May 2020 No. 2276/19.0BELSB

Portugal: D. v. Immigration and Borders Service, 14 May 2020 No. 1108/19.4BELSB

Portugal: I. v. Immigration and Borders Service, 14 May 2020 No. 2364/18.0BELSB

Portugal: A. v. Immigration and Borders Service, 14 May 2020 No. 2170/19.5BELSB

Portugal: Y. v. Immigration and Borders Service, 16 April 2020 No. 2368/19.6BELSB

Portugal: A. v. Immigration and Borders Service, 16 January 2020 No. 02240/18.7BELSB

Other Sources cited

BROUWER, Evelien: “7 in Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof” (2013)