Swedish Migration Board issues position following Tarakhel

Following on from Tarakhel v Switzerland (no 29217/12), the Swedish Migration Board (first instance) has issued a statement on their interpretation of Tarakhel which concerned the proposed return of a family to Italy under the Dublin Regulation. The Migration Board has submitted that in light of the judgment’s primary focus on families with children and children’s particular vulnerability, there is no need, where there is a risk of treatment contrary to Article 3 ECHR, for the sending state to seek guarantees from the receiving state for applicants who do not belong to families with children or other vulnerable groups. Moreover, according to the Board it can be stated that individuals who have already been granted a residence permit do not enter the reception system and are therefore not covered by the scope of the judgment.

In addition the Board submits that the Grand Chamber in Tarakhel does not consider that general systematic shortcomings exist in Italy which in themselves would give rise to preventing transfers. The detailed guarantees on housing conditions required by the judgment are only possible to obtain at the time of the actual transfer. Thus, according to the Board, guarantees must be obtained in the implementation phase of the transfer.

Finally, the Board surmises that if it should turn out that the obtaining of individual guarantees entails excessive processing time, which in turn would result in a violation of the fundamental rights of the asylum seeker, then the discretionary clause of Article 17.1 of the Dublin Regulation should be used and the family's applications for asylum be examined instead in Sweden. In this manner reference by the Board is made to C-411/10 and C-493/10 NS and Others v UK and Ireland.

The ELENA Weekly Legal Update would like to thank Swedish ELENA coordinator Michael Williams for providing us with this information. 

27 November 2014                                      

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