Dublin

Author

Portuguese Refugee Council Visit Website

General

Dublin statistics: 2022

Source: Information provided by SEF (April 2023).

Source:  Information provided by SEF (April 2023).

Source: Information provided by SEF (April 2023).

Application of the Dublin criteria

The Asylum Act refers to the criteria enshrined in the Dublin III Regulation for determining the responsible Member State.^[1] According to the information available, no additional formal guidelines regarding the practical implementation of such criteria are in place.

Empirical evidence of the implementation of the Dublin criteria pertaining to family unity is scarce given the usually limited number of incoming or outgoing requests pursuant to responsibility criteria provided in Articles 8-11 of the Regulation. According to the information provided by SEF, in 2022, there were 6 outgoing and 37 incoming ‘take charge’ requests under Articles 8-11.

In the very few instances where CPR has contacted SEF regarding the potential application of family unity criteria, in particular regarding Article 8 on children, evidence and information required to apply those provisions included identification documents, address and contacts of relatives residing in other EU Member States. In general, such contacts did not result in the outgoing transfer of the unaccompanied children as they generally absconded prior to any relevant development in the procedure.

According to the information provided by SEF on the practical application of Article 8, the best interest of the child is the only relevant criterion in practice. SEF further reported that, when family reunification through this avenue is a possibility, the capacity of the family members to receive the child is also analysed.

In the past, SEF issued multiple transfer decisions regarding unaccompanied asylum seekers claiming to be under 18 years of age, who had been previously registered as adults in other Member States.[2] These decisions made no reference to the applicant’s claim of minority in Portugal. Such decisions lead to a number of judicial decisions with discrepant outcomes. While in some cases, the best interest of the child was a clear concern,[3] in at least one, the applicant was deemed to be an adult due to the lack of evidence proving childhood.[4]

CPR is not aware of similar decisions since 2020. Instead, in some cases, SEF suspended the deadlines applicable to the asylum procedure on the grounds that such a decision required adjudication of the age assessment requested by the competent Family Court. In at least some instances, however, SEF eventually admitted the cases to the regular procedure before the age assessment was finalised (which could be linked to significant delays in the age assessment).

CPR is not aware of relevant recent indications regarding the application of the remaining family unit criteria.

The discretionary clauses

The ‘sovereignty clause’ enshrined in article 17(1) of the Dublin Regulation and the ‘humanitarian clause’ enshrined in its article 17(2) are at times applied in practice, but the criteria for their application remain unclear and no specific statistics are usually available on their use, except for the overall number of outgoing and incoming take charge requests under such clauses.^[5]

According to information provided by SEF, both article 17(1) and (2) may be applied by the national authorities for the purposes of family reunion, humanitarian reasons, other family or cultural reasons depending on the interest of the parties involved. In CPR’s experience, the underlying criteria in the application of the clause remain unclear.

A decision from TCA South recently stated that article 17 of the Dublin Regulation is only applicable in exceptional situations in order ‘not to subject the applicant for international protection to inhuman or degrading treatment’,[6] apparently following a very narrow understanding of the logic and purpose of the clause.

According to the data shared by SEF for 2022, there were 6 incoming and 0 outgoing requests based on the ‘humanitarian clause’. However, SEF has also stated that 34 applicants for international protection were relocated to Portugal from Malta and Italy, and 126 unaccompanied children and young adults were relocated from Greece pursuant to the humanitarian clause.

According to SEF, the ‘sovereignty clause’ has not been applied since 2018.

No transfer decisions to Greece have been adopted since the M.S.S. v. Belgium and Greece judgment of the European Court of Human Rights (ECtHR). For information on relocation to Portugal, see Access to the territory and push-backs.

Procedure

According to the Asylum Act a procedure for determining the Member State responsible for examining an application for international protection under the Dublin Regulation shall be conducted whenever there are reasons to believe that such responsibility lies with another Member State. In such cases, SEF shall make a ‘take charge’ or ‘take back’ request to the competent authorities of the relevant Member State.^[7]

The Dublin procedure is preliminary to the assessment of the application and, once initiated, suspends the applicable time limits for the issuance of a decision on the (remaining) inadmissibility grounds or the merits of the application (accelerated procedures).^[8]

While the law allows for the detention of asylum seekers submitted to a procedure for determining the responsible Member State pursuant to Article 28 of the Dublin III Regulation,^[9] the consequences of an asylum seeker’s refusal to comply with the obligation to be fingerprinted^[10] are limited to the application of an Accelerated Procedure.^[11] There are no legal provisions on the use of force to take fingerprints and CPR is not aware of any operational guidelines to that end. According to the information available to CPR, asylum seekers are systematically fingerprinted and checked in Eurodac in practice. According to CPR’s observation, accelerated procedures triggered by a refusal to be fingerprinted are a very rare occurrence.

In practice, SEF systematically determines which country is responsible for examining the asylum application in accordance with the criteria set out in the Dublin Regulation. This is done, among others, on the basis of the information collected through a preliminary form that must be filled by the asylum seeker upon registration and/or the individual interview. The preliminary form includes information on identification, itinerary, grounds for the asylum application, prior stays in Europe and supporting evidence.

During the interview with SEF, the asylum seeker is also asked to clarify relevant Dublin-related issues such as their identity and nationality, travel documents, visas and travel arrangements, itinerary and transportation to Portugal, and prior asylum applications.

Even when the personal interview focuses on the grounds of the application for international protection, the document narrating the individual interview that is signed and handed out to the applicant includes a reference to the Dublin Regulation, as well as a waiver for sharing information under Article 34 of the Regulation.

The full extent and implications of the right to be heard in Dublin procedures has been discussed in in the national courts.

The Asylum Act provides for the right of the asylum seeker to be informed of the purpose of fingerprinting as well as of other rights provided in the Eurodac Regulation.^[12] CPR has no indication on whether this obligation is systematically implemented in practice as, to the extent of its knowledge, the leaflets distributed contain limited information on fingerprinting and on the Eurodac Regulation. Moreover, CPR has no indication on whether the common information leaflet set out in Article 4(3) of the Dublin III Regulation is systematically distributed. According to the observation of CPR, the information contained in the documents that are systematically distributed to asylum seekers by SEF^[13] does not include all the information included on the Annex X (Parts A and B) of the corresponding Implementing Regulation.^[14] Notwithstanding, SEF reported that such information is provided to the applicants.

Individualised guarantees

According to information available to CPR, SEF does not seek individualised guarantees ensuring that the asylum seeker will have adequate reception conditions upon transfer in practice, either systematically or for specific categories of applicants or specific Member States.^[15]

CPR has no indication that individualised guarantees are sought following the notification of the transfer decision/prior to the transfer of the asylum applicant to the responsible Member State as well.

While certain Dublin-related judicial decisions refer to the individual circumstances of the applicant as a relevant element to assess the legality of a transfer decision (for instance in order to determine if there is a risk of inhuman or degrading treatment),^[16] CPR is not aware of judicial decisions focusing specifically on individualised guarantees.

Transfers

While the law provides for the detention of asylum seekers subject to the Dublin procedure,^[17] this provision is not implemented in practice and CPR is unaware of detention cases on this ground.

Asylum seekers are entitled to a standard laissez-passer upon notification in writing of the transfer decision.^[18] However, given the high rate of appeals, such a document is usually not issued at this point. According to the information available to CPR, all transfers are voluntary, and the applicant is informed of the exact date, time, and place they should present themselves to SEF for travel purposes.

According to SEF, in the absence of a judicial appeal or abscondment, the average duration of the Dublin procedure from the moment an outgoing request is issued until the effective transfer takes place was 35 days (‘take back’) or 80 days (‘take charge’). The average duration from the moment another Member State accepts responsibility until the effective transfer takes place, if the applicant does not abscond or appeal, was 15 to 20 days.

Practical experience in this regard remained limited as only 22 transfers were implemented out of the total of 615 outgoing requests. The transfer rate was thus of 3.6% in 2022.

According to the information provided by SEF, the most common obstacles to the implementation of transfers include: (1) suspension of transfers by a Member State; (2) challenges in securing flights complying with the requirements set out by the relevant Member State, and (3) abscondence of applicants.

Personal interview

The Asylum Act provides for the systematic personal interview of all asylum seekers, including those in a Dublin procedure.^[19] The personal interview can only be waived where: (i) the evidence already available allows for a positive decision; or (ii) the applicant lacks legal capacity due to long lasting reasons that are not under their control.^[20]

As mentioned above (see: Regular Procedure), SEF affirmed that applicants are guaranteed the right to an interview before any decision regarding their application is adopted, emphasising that interviews can only be waived in the cases listed in the Asylum Act. SEF also noted that interviews are conducted in all types of procedure, including Dublin.

According to CPR’s observation, in 2022, applicants in a Dublin procedure were systematically invited to an interview. Nevertheless, CPR is aware of cases where a transfer decision was adopted in the absence of an interview when the applicant absconded.[21]

Overall, the modalities of the interview are the same as those of the Regular Procedure and the interview is generally conducted by SEF-GAR, although interviews can be at times conducted by regional representations in cases of asylum applications made outside the Lisbon area.

The Dublin transcripts/interviews include an explanation of the aims and criteria of the Dublin Regulation as well as questions focusing on identification and contacts of family members, travel documents/visas, Eurodac registrations, information on entry/stay, and previous applications for international protection. The interview form also contains a section on vulnerability but follows a limited understanding of the concept, as it only includes questions on the health condition of the applicant and family members. Furthermore, it includes a section where the relevant Dublin Regulation criteria for the case are signalled and a question allowing the applicant to reply to such information.

Applicants interviewed within the context of Dublin Procedures are further notified of a document stating that the application will likely be subject to an inadmissibility decision and corresponding transfer to a concrete Member State according to the Dublin Regulation.[22] This document also notifies the applicant of the possibility to provide written comments pursuant to the general administrative rules.^[23] However, despite the general rule determining that the deadline for response cannot be of less than 10 days,^[24] the deadline prescribed by the above-mentioned notifications is of only 5 days. Such documents are not communicated to CPR by the authorities on a systematic basis.^[25]

Appeal

The Asylum Act provides for an appeal against decisions in the Dublin procedure consisting of a judicial review of relevant facts and points of law by the Administrative Court.^[26] The asylum seeker has 5 days to lodge the appeal.^[27] As in the Regular Procedure, the initial and onward appeals are automatically suspensive,^[28] and the law provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.^[29]

The available case law indicates that the asylum seeker can challenge the correct application of the Dublin criteria,^[30] as per the ruling of the Court of Justice of the European Union (CJEU) in Ghezelbash.^[31] The court also verifies if all formalities have been respected by SEF, including applicable deadlines set forth in the Dublin Regulation.^[32]

It should be noted that, while CPR may be requested to intervene in the judicial procedure, namely by providing country of origin information, Dublin country information or guidance on legal standards, it is not a party thereto and is therefore not systematically notified of judicial decisions by the courts.

The information provided by the CSTAF for 2022 regarding the number, nationalities of appellants, average duration and results of judicial reviews does not make a distinction between the type of asylum procedures (see Statistics). Nevertheless, the data shared shows that, out of a total of 233 decisions rendered by first instance courts in 2022, 125 concerned Dublin procedures. According to the same source, within the context of Dublin cases, first instance courts decided in favour of the applicant on 16 occasions.

According to the information available to CPR, Dublin procedures were the main type of asylum procedure used in 2022 to reject asylum applications at first instance in the case of all of the five most represented nationalities at appeal stage (Gambia, Morocco,[33] Guinea Bissau, Senegal, and Pakistan).

Legal assistance

With regard to access to free legal assistance for asylum seekers during the Dublin procedure and at appeal stage, the general rules and practice of the regular procedure apply (see Regular Procedure).

With regard to access to legal aid for appeals, see Regular Procedure. Notably, as mentioned, applicants within the Dublin procedure were among the most affected by the practice of the Portuguese Bar Association according to which, following a refusal by the appointed lawyer to provide free legal aid on the grounds that the chances of success were limited, a replacement was not appointed.

Suspension of transfers

According to the information available to CPR the only country to which Dublin transfers are suspended as a matter of practice (as no requests are made by the Portuguese authorities) is Greece. This has been the case since the 2011 M.S.S. v. Belgium and Greece judgment of the ECtHR.

Given the significant number of Dublin cases analysed by the national courts in recent years, there has been a wide array of jurisprudence focusing on the legality of Dublin transfers.

TCA South underlined in a 2019 judgement that the mere allegation by an asylum seeker that they would enjoy better conditions in Portugal than in the receiving Member State, is not enough to waive the rules on responsibility established by the Dublin Regulation.^[34]

In another case, TCA South considered that the fact that the applicant stated, during the personal interview, that he would like to stay in Portugal because the population was friendly and not racist, without referring to racist acts suffered in Spain was not sufficient to trigger an obligation for SEF to analyse the existence of systemic flaws in the Spanish asylum system as it is not publicly known that such system has clear systemic deficiencies.^[35]

In a 2020 judgement, concerning a transfer decision to Spain, TCA South considered, inter alia, that the strong migratory pressure and poor reception conditions,^[36] were not sufficient to consider that there would be a serious risk of inhuman or degrading treatment.^[37]

In 2020, TCA South analysed the case of an Iraqi national (from Mosul) whose application for international protection in Denmark was previously rejected and who was subject to a transfer decision from Portugal to Denmark.

While considering that the reception conditions in Denmark (including vis-à-vis detention) were not of such severity to fulfil the threshold of Jawo, the Court considered that it must also analyse if the return decision may imply a risk of indirect refoulement due to the likely removal from Denmark to Iraq, therefore violating Article 33 of the Geneva Convention and Articles 4 and 19(2) of the Charter of Fundamental Rights of the European Union. Within that context, the Court concluded, inter alia, that, in light of the available information on the human rights, humanitarian and security situation in the applicant’s region of origin and relevant recommendations of international organisations, return may imply a serious risk of torture, inhuman or degrading treatment or a threat to his life and physical integrity.

Given that the information available on the individual case did not allow for an assessment of such risks, TCA South determined that the administrative authority must complete the analysis of the case namely by obtaining all the relevant information on the applicant’s profile and individual situation and on the situation in Iraq.^[38]

In a case adjudicated in 2021, TCA South noted that the applicant did not make statements that led to the conclusion that they would likely be deported to Afghanistan in case of return to Sweden. The Court emphasised that, in order to rule on a potential violation of the prohibition of refoulment in such circumstances, it has to be shown that the applicant is at a serious risk of deportation or that the deportation is very likely to occur. According to the Court, it is insufficient to merely refer to such a fear.[39]

Dublin transfers to Italy have been by far one of the most frequent asylum-related topics addressed by superior administrative courts in Portugal in recent years, allowing for conclusions not only regarding transfers to Italy themselves, but also regarding the applicant’s burden of allegation, and the Administration’s duties of assessment within this context.[40]

Notably, in January 2020, STA ruled on a case concerning the issue of systemic flaws in Italy and the duties of national authorities within this context.^[41]

The Court considered that the statements provided by the applicant within the administrative procedure and the information collected by lower instance courts on the situation in Italy were not sufficiently detailed/severe to create a duty on the requesting Member State to further investigate the situation in the requested Member State. STA also affirmed that the requesting Member State is only obliged to collect up-to-date information on the risk of inhuman or degrading treatment in the receiving Member State where there are valid reasons to consider that there are systemic flaws in the asylum procedure/reception conditions of such Member State and where such flaws amount to a risk of inhuman or degrading treatment. The Court further noted that the information collected/considered by lower instance courts regarding Italy revealed an anomalous situation but that such situation is one of an abnormal influx of ‘illegal migration’. According to the Court, such situation (that includes ‘potential refugees’ but also other persons) does not create a risk of torture, inhuman or degrading treatment in Italy.^[42]

This interpretation has been reaffirmed in subsequent cases.^[43] Overall, an analysis of the jurisprudence of STA in this regard, indicates that the Court considers that:

• The determining authority is not bound to a general duty to inquire the situation in the responsible Member State. It remains unclear if there are situations where the Court would consider that such an obligation exists regardless of the applicant’s allegations (e.g., notorious deficiencies that cannot be ignored by the determining authority).
• The applicant bears a burden of allegation and demonstration of the risk in case of return (see infra).
• The flaws in the asylum system of the responsible Member State must be extremely severe.
• The situation in Italy does not amount to one of generalised risk of torture, inhuman or degrading treatment.[44]

With regard to the burden imposed on the applicant the following main features can be inferred from the decisions of STA:^[45]

• It is insufficient for the applicant to invoke ‘generic and abstract deficiencies’;^[46]
• The allegation of systemic flaws by itself is not sufficient neither to invalidate a transfer decision, nor to require SEF to examine the conditions in Italy;^[47]
• The applicant must invoke ‘concrete facts allowing to conclude that there is an effective risk that they could be subject to inhuman treatment in Italy’;^[48]
• The applicant must invoke and demonstrate ‘exceptional personal circumstances and not only a common and generalised knowledge of the reception difficulties in Italy’;^[49]
• The personal circumstances of the applicant must not be described ‘in an overly generic manner and with lack of detail’;^[50]
• The absence of references in the applicant’s statements/allegations to prior inhuman or degrading treatment in Italy is detrimental to their claim (especially if they were in the relevant Member State for a long period of time);^[51]
• The applicant’s statements must allow the conclusion that ‘there is a concrete situation in which the applicant was affected in a manner beyond acceptable by the deficient reception conditions’;^[52]
• Among the allegations deemed to be insufficient are claims regarding the excessive length of procedures, lack of access to employment, security concerns and challenges in accessing medical assistance.

These features reveal a significant focus on the applicant’s statements as well as on past treatment and events directly experienced in the responsible Member State.^[53] Furthermore, apparently, the applicant is required to disclose such treatment/events proprio motu, as the authorities are not specifically required to ask follow-up questions regarding potential risks in the responsible Member State.

While according to CPR’s analysis, some diverging decisions were identified[54] the jurisprudence of TCA South has predominantly adopted similar positions since then.^[55]

This understanding of the applicant’s burden of allegation/substantiation has also been applied by the Court in cases concerning transfers to other Member States.

According to the analysis conducted, the most relevant consequences seem to be:

• A significant focus on the need to describe concrete situations that have impacted the applicant directly;[56]
• The reference to the absence of individual vulnerabilities/risk factors as an element to determine the (in)existence of a duty on the authorities to inquire the situation in the relevant Member State.[57]

In a more protective approach, TCA South affirmed that national courts are obliged to conduct an exhaustive and ex nunc analysis of facts and points of law of the case which includes the risk of inhuman or degrading treatment of Dublin transfers. According to the decision, this comprises an analysis of all the information necessary, regardless of whether it is provided by the parties or gathered by the Court itself.[58]

In two cases adjudicated in 2021, TCA South also concluded that the applicant’s health condition is a vulnerability factor that may lead to the existence of special needs. According to these decisions, in such cases the lack of analysis of the reception conditions and its impact on the health of the applicant is a violation of the duties of the Administration.[59] A similar reasoning has been followed by the same court in at least two cases adjudicated in 2022.[60]

With regard to the conditions offered in the receiving Member State, TCA South recently decided that an allegation of non-satisfaction of basic housing needs must be analysed by the administrative authorities.[61] STA decided that the non-provision of financial support to an asylum seeker for almost a month does not amount to inhuman or degrading treatment.[62] TCA South has also decided in at least two cases that the pressure faced by Poland due to the displacement from Ukraine was not sufficient to oblige the administrative authority to assess possible risks of inhuman or degrading treatment of Dublin returnees.[63]

While this does not seem to be the predominant interpretation, there are also multiple judgements from TCA South determining that the safeguard clause of Article 3(2) of the Dublin Regulation is not applicable to take back procedures under Article 18(1)(d) of the Dublin Regulation. The Court considered that, in such cases, compliance with the principle of non-refoulement should be verified.^[64]

CPR is aware that, since 2020, some transfer decisions to Italy issued by SEF included information on the situation in the Member State, and references to relevant national jurisprudence, concluding that there was no risk of ‘extreme material poverty’ constituting a risk of inhuman or degrading treatment in the case of transfer.^[65] In some instances (e.g., when the applicant referred to health issues during the interview), the decisions contained a general analysis of the specific allegation.

The situation of Dublin returnees

The National Director of SEF is the competent authority to accept the responsibility of the Portuguese State for ‘assessing an application for international protection’ presented in other another EU Member State.^[66] In practice, asylum seekers returned under Dublin do not face relevant or systematic obstacles in accessing the asylum procedure and reception conditions following a transfer to Portugal.

SEF usually informs CPR beforehand of the date of arrival, flight details and medical reports (if applicable). Upon arrival at the airport, asylum seekers receive a notification to present themselves at SEF-GAR in the following day(s) and are referred to CPR’s Refugee Reception Centre (CAR) in Bobadela or to other facilities or organisations (ISS/SCML), as applicable, for the provision of reception conditions.

In accordance with the Asylum Act, where the asylum seeker withdraws their application implicitly by disappearing or absconding for at least 90 days without informing SEF, the file can be deemed closed by the National Director of SEF.^[67] Notwithstanding, the applicant is entitled to reopen their asylum case by presenting themselves to SEF at a later stage. In this case, the file is to be resumed at the exact stage where it was discontinued by the National Director of SEF.^[68]

According to the information available to CPR, asylum seekers who had previously abandoned their application and left the country have not faced relevant or systematic problems in reopening their asylum cases and have not been treated as subsequent applicants following incoming transfers.

Since 2018, Portugal and Germany have an administrative arrangement pursuant to Article 36 of the Dublin Regulation to facilitate the implementation of transfers. The agreement aims to facilitate returns by introducing non-binding shorter timeframes – one month instead of three months for a ‘take charge’ request – and providing for group instead of individual transfers.^[69]

According to the observation of CPR, applicants have been returned similarly to other Dublin cases, and the agreement does not impact the treatment of Dublin returnees.

^[1] Article 37(1) Asylum Act.

[2] For a detailed explanation of this practice, please revert to the 2021 AIDA Update, available at: https://bit.ly/3UuxLdQ.

[3] TAC Lisbon, Decision 2334/17.5BELSB, 24 November 2017, unpublished; TAC Lisbon, Decision 1516/19.0BELSB, 16 October 2019, unpublished.

[4] TAC Lisbon, Decision 1216/19.1BELSB, 22 October 2019, unpublished. It is interesting to note that the same course of action was followed by the Family Court responsible for the application of the protective measure. The decision from TAC Lisbon was confirmed by TCA South: TCA South, Decision 1216/19.1BELSB, 13 February 2020, available at https://bit.ly/3rj1gPf.  

^[5] According to SEF, there were 4 outgoing and 3 incoming take charge requests pursuant to Article 17(2) of the Regulation in 2019, and 0 outgoing and 2 incoming such requests in 2020.

[6] TCA South, Decision 137/21.2BELSB, 31 August 2021, https://bit.ly/3iM3NQv.

^[7] Articles 36 and 37(1) Asylum Act.

^[8] Article 39 Asylum Act. A recent decision from TCA South clarified that the suspension of the 30-day deadline provided for in article 20 is operated by the internal order determining that a case will be processed under the Dublin procedure following the identification of a Eurodac hit. TCA South, Decision 1167/20.7BELSB, 17 December 2020, available at: https://bit.ly/3tMrfAn.

^[9] Article 35-A(3)(c) Asylum Act.

^[10] Article 15(1)(e) Asylum Act.

^[11] Article 19(1)(j) Asylum Act.

^[12] Article 49(1)(b) Asylum Act.

^[13] While the version distributed to applicants, according to CPR’s knowledge, is an handout in Portuguese, English and French, another version of the document (containing similar information) is available online in Portuguese at: https://bit.ly/2Hq5aEy.

^[14] Commission Implementing Regulation (EU) no.118/2014 of 30 January 2014, available at: https://bit.ly/3emtXFT.

^[15] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, 4 November 2014.

^[16] For example: TCA South, Decision 1982/18.1BELSB, 22 August 2019, available in Portuguese at: https://bit.ly/36vzJAV, confirming a judgement of TAF Sintra (unpublished) that annulled the decision to transfer an applicant with hepatitis B to Italy; TAC Lisbon, Decision 2364/18.0BELSB, 22 March 2019 (unpublished), annulling a transfer decision to Italy, inter alia, because the adjudicating authority did not properly assess the nature and severity of health issued referred by the applicant in the personal interview; TAC Lisbon, Decision 2048/19.2BELSB, 13 December 2019 (unpublished), confirming a transfer decision to Italy as it was not proved that there are systemic flaws in the receiving Member State and, even so, the applicant would have to demonstrate that, given his/her specific circumstances, the situation would amount to a risk of inhuman or degrading treatment.

^[17] Article 35-A(3)(c) Asylum Act.

^[18] Article 37(3) Asylum Act.

^[19] Article 16(1)-(3) Asylum Act.

^[20] Article 16(5) Asylum Act.

[21] Pursuant to article 5(2)(a) of the Dublin Regulation.

[22] For a detailed analysis on the relevance of national jurisprudence in shaping this practice, and the different interpretations of the legal basis of the right to be heard in Dublin procedures, see the 2021 AIDA Report, available at: https://bit.ly/3wayt4r.

^[23] Article 121 Administrative Procedure Code.

^[24] Article 122 Administrative Procedure Code.

^[25] A practice observed at least since the third trimester of 2019.

^[26] Article 37(4) Asylum Act; Article 95(3) Code of Procedure in Administrative Courts.

^[27] Ibid.

^[28] Article 37(4) and (6) Asylum Act.

^[29] Article 37(5) Asylum Act.

^[30] TAC Lisbon, Decision 2183/15.6BESLB, 25 November 2015, unpublished, which states that a Dublin transfer decision can be challenged in case of incorrect application of the criteria enshrined in the Dublin Regulation and then moves on to assess the content of the criteria enshrined in Articles 8 to 10 and 17(1) in light of the particular circumstances of the applicant.

^[31] CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.

^[32] TAC Lisbon, Decision 1235/16.0BESLB, 14 September 2016, unpublished.

[33] For Morocco, accelerated procedures were equally relevant.

^[34] TCA South, Decision 235/19.2BELSB, 26 September 2019, available in Portuguese at: https://bit.ly/2QI4SdC.

^[35] TCA South, Decision 409/19.6BELSB, 7 November 2019, available in Portuguese at: https://bit.ly/2tu6U8Y.

^[36] The applicant described having been accomodated in containers shared with other people (increasing the risk of coronavirus infection) and unable to find a job in Spain.

^[37] The Court further noted that SEF is only exceptionally required to analyse the existence of systemic flaws per the jurisprudence of the STA regarding Italy (see infra). TCA South, Decision 938/20.9BELSB, 15 October 2020, available at: https://bit.ly/3vUViYC.

^[38] TCA South, Decision 775/19.3BELSB, 10 September 2020, available at: https://bit.ly/34FHYM0. One of the three judges dissented on the grounds that a transfer to Denmark would not violate the principle of non-refoulement as the country is also bound to the relevant rules of EU and International Law and is therefore obliged to take them into account in any return procedure. The dissent also notes that the applicant may appeal of any such decision.

[39] TCA South, Decision 1323/19.0BELSB, 4 March 2021, available at: https://bit.ly/3tP8y1G.

[40] For a detailed overview of the evolution of jurisprudence on this topic, please revert to the 2019, 2020 and 2021 AIDA reports, all available at: https://bit.ly/3GubAhN.

^[41] Supreme Administrative Court, Decision 2240/18.7BELSB, 27 September 2019, available in Portuguese at: https://bit.ly/2FftdSu.

^[42] Supreme Administrative Court, Decision 2240/18.7BELSB, 16 January 2020, available in Portuguese at: https://bit.ly/3cq4BFd.

^[43] STA, Decision 01108/19.4BELSB, 11 May 2020, available at: https://bit.ly/3lXMxZ9; STA, Decision 01322/19.2BELSB, 4 June 2020, available at: https://bit.ly/3feFnOY; STA, Decision 01088/19.6BELSB, 2 July 2020, available at: https://bit.ly/3riiCN1; STA, Decision 01786/19.4BELSB, 2 July 2020, available at: https://bit.ly/3rlpk4h; STA, Decision 01419/19BELSB, 9 July 2020, available at: https://bit.ly/3fdz51X; STA, Decision 03421/19.1BEPRT, 10 September 2020, available at: https://bit.ly/3d3nmjT; STA, Decision 01705/19.8BELSB, 10 September 2020, available at: https://bit.ly/39dVSXH; STA, Decision 02364/18.0BELSB, 5 November 2020, available at: https://bit.ly/3tUOI2i; STA, Decision 01932/19.8BELSB, 5 November 2020, available at: https://bit.ly/3w1B67x;  STA, Decision 01301/19.0BELSB, 19 November 2020, available at: https://bit.ly/39fas0S; STA, Decision 02212/19.4BELSB, 10 December 2020, available at: https://bit.ly/3d5ncbB.

[44] With regard to the situation in Italy in particular, in a number of cases adjudicated in 2021, TCA South valued the fact that a number of the restrictive measures implemented by Matteo Salvini as Ministry of Home Affairs has been reverted in the meantime. See TCA South, Decision 998/20.2BELSB, 18 February 2021, available at: https://bit.ly/3Nywsqo; TCA South, Decision 1113/20.8BELSB, 4 February 2021, available at: https://bit.ly/3IT2nyf; TCA South, Decision 88/21BELSB, 17 June 2021, available at: https://bit.ly/36E5SLK. Furthermore, it has also been considered that the “overall situation in the country” does not lead to the conclusion that all Dublin transfers to Italy would violate article 3 ECHR and article 4 CFREU. See: TCA South, Decision 998/20.2BELSB, 18 February 2021, available at: https://bit.ly/3Nywsqo; TCA South, Decision 88/21BELSB, 17 June 2021, available at: https://bit.ly/36E5SLK. In one case, TCA South used as an indicator of the absence of systemic flaws in the Italian reception system the fact that there are also foreigners sleeping on the streets and without food in Portugal. TCA South, Decision 1696/20.2BELSB, 18 February 2021, available at: https://bit.ly/3K90IpL.

^[45] Unofficial translations.

^[46] STA, Decision 01322/19.2BELSB, 4 June 2020, available at: https://bit.ly/3feFnOY.

^[47] STA, Decision 01108/19.4BELSB, 11 May 2020, available at: https://bit.ly/3lXMxZ9.

^[48] STA, Decision 01322/19.2BELSB, 4 June 2020, available at: https://bit.ly/3feFnOY.

^[49] STA, Decision 01322/19.2BELSB, 4 June 2020, available at: https://bit.ly/3feFnOY; STA, Decision 01786/19.4BELSB, 2 July 2020, available at: https://bit.ly/3rlpk4h.

^[50] Decision 01786/19.4BELSB, 2 July 2020, available at: https://bit.ly/3rlpk4h.

^[51] STA, Decision 03421/19.1BEPRT, 10 September 2020, available at: https://bit.ly/3d3nmjT.  

^[52] STA, Decision 02364/18.0BELSB, 5 November 2020, available at: https://bit.ly/3tUOI2i.

^[53]  It is thus unclear how the assessment would be conducted in cases of take-charge procedure where the applicant was not physically present in the relevant Member State before but claims that there are systemic deficiencies or that they would be subject to a risk of torture, inhuman or degrading treatment in such Member State.

[54] In three cases, the TCA South considered, inter alia, that there were “clear, obvious and proven indications of the existence of systemic flaws” in the Italian system and that its malfunctioning was “endemic and deliberate” and reached the severity threshold required by the relevant European jurisprudence. Such conclusions were based on information from specialised NGOs and international organisations. The Court further considered that the applicant is not bound to a duty of allegation of systemic flaws. According to this understanding, the applicant is only required to provide information on their personal circumstances that can be relevant for the application of the safeguard clause. At least two of these judgements were later overturned by the STA. See: TCA South, Decision 2364/18.0BELSB, 14 May 2020, available at: https://bit.ly/3d3LrqC (an English EDAL case summary is available at https://bit.ly/3t1EJZ5). This decision was later reversed by the STA. TCA South, Decision 1301/19.0BELSB, 14 May 2020, available at: https://bit.ly/3177qYm). This decision was later reversed by the STA. TCA South, Decision 2317/19.1BELSB, 14 May 2020, available at: https://bit.ly/3cdcctC. In another case, the Court stated that Article 3(2) of the Dublin Regulation contains “a legal duty for the Member States to consider the possible existence of systemic flaws in the asylum procedure and reception conditions” (TCA South, Decision 2221/19.3BELSB, 18 June 2020, available at: https://bit.ly/3fbGONR). While the applicant was not vulnerable, the existence of such deficiencies has been reported and was raised by the applicant during the interview (the applicant stated that he lived on the street for nine months before coming to Portugal and that he would have to do so again in case of return). The Court concluded that SEF should have added reliable and up-to-date information on the situation in Italy to the process.  

^[55] E.g. TCA South, Decision 2329/19.5BELSB, 30 April 2020, available at: https://bit.ly/3rfQ0TO (referring to the relevance of mutual trust); TCA South, Decision 2323/19.6BELSB, 02 July 2020, available at: https://bit.ly/3vQVo3m (referring to the relevance of mutual trust and the need to prevent asylum shopping); TCA South, Decision 695/20.9BELSB, 24 September 2020, available at: https://bit.ly/3vUzs7q (highlighting the inexistence a general ex officio duty of analysis of the situation in the relevant Member State that the applicant’s statements did not point towards the applicability of article 3(2) Dublin Regulation and the notorious facts do not require an ex officio evaluation); TCA South, Decision 1052/20.2BELSB, 15 October 2020, available at: https://bit.ly/3sfK6Uc; TCA South, Decision 357/20.7BELSB, 29 October 2020, available at: https://bit.ly/3setb4t; TCA South, Decision 1117/20.0BELSB, 12 November 2020, available at: https://bit.ly/318BJxV; TCA South, Decision 1122/20.7BELSB, 26 November 2020, available at: https://bit.ly/3tMPXAO.

[56] TCA South, Decision 1112/20.8BELSB, 18 February 2021, available at: https://bit.ly/3iMS3wT; TCA South Decision 1908/20.2BELSB (Germany), 21 April 2021, available at: https://bit.ly/3uyiVWQ.

[57] TCA South, Decision 998/20.2BELSB, 18 February 2021, available at: https://bit.ly/3Nywsqo; TCA South, Decision 2300/20.4BELSB, 17 June 2021, available at: https://bit.ly/3wPHGAW; TCA South, Decision 88/21.0BELSB, 17 June 2021, available at: https://bit.ly/36E5SLK.

[58] The Court also refers to some of the requirements that the sources used should comply with. TCA South, Decision 1323/19.0BELSB (Sweden), 4 March 2021, available at: https://bit.ly/3tP8y1G.  

[59] Concerning the transfer to France of an applicant with cardiac-related issues that had not yet been evaluated in Portugal – TCA South, Decision 1960/20.0BELSB, 24 August 2021, available at: https://bit.ly/3uxtSrQ. Concerning the transfer to Spain of an applicant with gastric complaints that had not yet been evaluated in Portugal – TCA South, Decision 1673/20.3BELSB, 24 August 2021, available at: https://bit.ly/3Nuj1aS. Nevertheless, in another case, the TCA South considered that an allegation of chest pain was not enough to require further inquiries or to preclude a transfer to France. TCA South, Decision 739/21.7BELSB, 15 September 2021, unpublished.

[60] TCA South, Decision 917/21.9BELSB, 9 March 2022, available at: https://bit.ly/3KPt0Zn; TCA South, Decision 1988/20.0BELSB, 20 October 2022, unpublished. On the contrary, it has been decided that young, healthy and autonomous persons (even if with minor health issues) are not part of an at-risk group, and, as such, there is no duty on the authorities to assess potential risks of the reception conditions in the receiving Member State. TCA South, Decision 545/21.9BELSB, 3 February 2022, available at: https://bit.ly/3ZCtSot.

[61] TCA South, Decision 177/22.4BELSB, 23 June 2022, unpublished (case concerning France).

[62] STA, Decision 0269/22.0BELSB, 25 November 2022, available at: https://bit.ly/3y5Y0Nc

[63] TCA South, Decision 2040/22.0BELSB, 17 November 2022, not publicly available. It is worth mentioning that this decision had a dissent from one of the judges, underlining the information publicly available on the situation in Poland, as well as the need to consider the applicant’s individual circumstances and characteristics in the assessment of the risk of inhuman or degrading treatment in the receiving State. TCA South, Decision 879/22.5BELSB, 6 October 2022, available at: https://bit.ly/3kHRQzC. While the decision was appealed to STA, the court refused to analyse the case deeming the decision in line with STA’s jurisprudence on Dublin transfers. STA, Decision 879/22.5BELSB, 7 December 2022, available at: https://bit.ly/3y3kG0H.

^[64] TCA South, Decision 1889/19.5BELSB, 14 May 2020, available at: https://bit.ly/3rfSscW; (referring both to the risk of direct and indirect refoulement); TCA South, Decision 61/20.6BELSB, 2 July 2020, available at: https://bit.ly/3f9Od0a (referring only to the absence of risks in the relevant Member State, one of the judges dissented on the grounds that the transfer to Italy would amount to a violation of the principle of non-refoulement and that risk of refoulement in case of return to the country of origin should have also been assessed; an English EDAL case summary is available at https://bit.ly/3cVM0E8); TCA South, Decision 65/20.9BELSB, 24 September 2020, available at: https://bit.ly/3cV2IlK (referring only to the absence of risks in the relevant Member State); TCA South, Decision 988/20.5BELSB, 1 October 2020, available at: https://bit.ly/3tMexSj; TCA South, Decision 1050/20.6BELSB, 29 October 2020, available at: https://bit.ly/3sb5dXE;TCA South, Decision 1065/20.4BELSB, 21 January 2021, available at: https://bit.ly/3DnVjIA; TCA South, Decision 1120/22.6BELRS, 6 October 2022, available at: https://bit.ly/3kNYHHM. This interpretation has also been explicitly rejected by the same court in the course of 2022: TCA South, Decision 545/21.9BELSB, 3 February 2022, available at: https://bit.ly/3ZCtSot ; TCA South, Decision 177/22.4BELSB, 26 June 2022, unpublished.

^[65] CJEU, Jawo, Case C-163/17, 19 March 2019.

^[66] Article 40(1) Asylum Act.

^[67] Article 32(1)(c) and (2) Asylum Act.

^[68] Article 32(3) of the Asylum Act.

^[69] The agreement has been deemed as generally in line with the Dublin Regulation by European Commission, Ares (2018) 4489201, 31 August 2018.