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Portugal: Administrative Litigation Section of the Central Administrative Court, 10/12/2019, proc. nº 1026/19.6BLESB

Country of Decision:
Portugal
Country of Applicant:
Date of Decision:
10-12-2019
Citation:
Proc. nº 1026/19.6BLESB - Tribunal Central Administrativo Sul
Court Name:
Tribunal Central Administrativo Sul
Keywords:
Dublin Transfer, Procedural guarantees
Relevant Legislative Provisions:
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 41
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 48
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 49
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 4
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 5
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 18
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 25
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 26
National / Other Legislative Provisions:
Art. 16
17
19
36
37
84 Law 27/2008
Art. 267 Constitution
Art. 12
121
124
163 Administrative Procedural Code
Art. 16 Law 23/2007
Art. 639 Procedure Civil Code
Decision 1026 19.docx
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Headnote: 

The applicant brought an administrative action before the Administrative Court of the Circuit of Lisbon against the Ministry of Internal Affairs - Foreigners and Borders Service (SEF), in which he sought the annulment of the decision of the National Director of the SEF determining his transfer to Italy and the condemnation of the requested entity in the continuation of the process of international protection.

The Central Administrative Southern Court dismissed the appeal and, on grounds other than those set out in the contested judgment, upheld the decision to annul the decision of the National Director of SEF.

Facts: 

On April 2019, the applicant applied for asylum in Portugal. After consulting the EURODAC system, the Portuguese authorities found two positive hits from the Italian State regarding the applicant.

On May 2019, the National Director of the Service of Foreign and Borders issued an order, in which she considered the request submitted by the applicant to be inadmissible and that a transfer to Italy should be made in accordance with the Dublin III Regulation.

Decision & Reasoning: 

The Court divided the reasoning into two main topics.  First, the Court analysed if the appeal should be dismissed due to the absence of conclusions, then, if the contested decision was subject to error of judgment.

The applicant claimed that the conclusions presented by the original Court did not fulfil the burden imposed by the Procedural Civil Code to present synthetic conclusions in a proper reasoning.

Although the Court agrees that the original Court used overly long-winded conclusions, it was still possible to clearly infer its reasons; this claim should therefore be dismissed.

In the contested decision, the Service of Foreign and Borders understood that they should have prepared a written report with the essential information related to the application and to notified it to the applicant. Since it did not happen, they annul the decision. However, this is a specific determination that does not apply to this specific case.

Nonetheless, the prior hearing was defective. According to the Court, this is the correct reason for the annulment.

Therefore, the appeal was dismissed and the annulment decision maintained, although with different reasons for the decision under appeal.

Outcome: 

Appeal dismissed; decision maintained with different reasoning.

Other sources cited: 

Domestic Case Law cited

  • Supreme Administrative Court, 3/07/2011, proc. n.º 0840/10,
  • Supreme Administrative Court, 23/10/2014, proc. n.º 625/14,
  • Supreme Administrative Court, 20/11/2014, proc. n.º 0816/14,
  • Supreme Administrative Court, 20/01/2015, proc. n.º 1058/14,
  • Supreme Administrative Court, 19/11/2015, proc. n.º 1120/14,
  • Supreme Administrative Court, 28/04/2016, proc. 0209/16,
  • Supreme Administrative Court, 19/05/2016, proc. n.º 0203/16,
  • Supreme Administrative Court, 17/05/2018, proc. n.º 1273/16,
  • Supreme Administrative Court, 0/05/2019, proc. n. º 0970/18.2BELSB
  • Supreme Administrative Court, 05/09/2019, proc. n. º 01724/18.1BELSB,
  • Admin Court South, 6/06/2019, proc. nº 90/19.2BELSB
  • Admin Court South, 04/07/2019, proc. n. º 2379/18.9BELSB
  • Admin Court South, 06/06/2019, proc. n.º 2240/18.7BELSB,
  • Admin Court South, 22/08/2019, proc. n.º 1982/18.1BELSB,
  • Admin Court South, 26/09/2019, proc. n.º 557/19.2BELSB,
  • Admin Court South, 21/11/2019, proc. n. º 401/19.0BELSB,
  • Admin Court South, 21/11/2019, proc. n. º 1059/19.2BELSB
  • Admin Court South, 21/11/2019, proc. n. º 1157/19.2BELSB

Other Sources

  • Informação nº 17…/GAR/2018 do Gabinete de Asilo e Refugiados do Serviço de Estrangeiros e Fronteiras
  • Informação do SEF n.º 76…/GAR/2019

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