Finland: Supreme Administrative Court rules against Dublin III returns to Hungary due to ‘systemic flaws’ in asylum procedures and reception conditions

Wednesday, April 20, 2016

In decision KHO: 2016: 53 of 20 April 2016, the Supreme Administrative Court of Finland has ruled that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in Hungary within the meaning of Article 3(2) of the Dublin III Regulation(DRIII). This ruling sets a precedent and therefore must be followed by lower courts in Finland. 

The appellant is an Afghan national who challenged his transfer from Finland to Hungary, which was responsible for examining his asylum application under Article 18(1)b) DRIII and which had accepted his transfer.

The Supreme Administrative Court  referred to the AIDA Country Report on Hungary, the AIDA Fact-Finding Mission and the third party intervention by the CoE Commissioner of Human Rights in two ECtHR cases relating to Dublin returns to Hungary. It also relied on a number of national judgments of other EU Member States in which courts had prevented Dublin returns to Hungary due to a risk of human rights violations, many of which are included in the ECRE Case Law Fact Sheet

The Court found that in accordance with Article 3(2) DRIII, the principle of mutual trust and presumption that a responsible Member State under the Regulation will comply with the fundamental rights of asylum applicant, was not absolute. Although the threshold to depart from this presumption was high, there were strong indications that there were systemic flaws in the asylum procedure and reception conditions in Hungary within the meaning of Article 3(2) based on the materials before the Court, including the jurisprudence of other Member States.

As such the Court finds that transfer is not allowed for particularly vulnerable persons. Although the appellant in the case is an adult healthy male, he would still be at risk of removal to Serbia and onward refoulement to his country of origin without his asylum claim being substantively considered in any jurisdiction.  Although he could apply for suspension of removal in Hungary, including possible recourse to the ECtHR, the effectiveness of such a remedy was uncertain due to the numbers of applications the Hungarian authorities had to deal with as well as problems with legal advice and interpretation services for asylum seekers. When the principle of the ‘benefit of the doubt’ was also taken into consideration, alongside the principle of interpreting laws in a manner respective of fundamental human rights, the case had to be ruled in favour of the appellant in this uncertain situation. Taking into account up-to-date country of origin information, it was not possible to reliably ascertain that the appellant's return to Hungary would not violate Article 4 CFREU or Article 3 ECHR

The Court concludes that based Article 3(2) DRIII, the appellant's application for international protection must be assessed in Finland.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank the ELENA national coordinator for Finland, Marjaana Laine, for providing us with this information and her assistance with the summary.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Assessment of facts and circumstances
Country of origin information
Dublin Transfer
Effective access to procedures
Inhuman or degrading treatment or punishment
Legal assistance / Legal representation / Legal aid
Material reception conditions
Reception conditions