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

Country of Decision:
Country of Applicant:
Date of Decision:
14-05-2020
Citation:
I. v IBS [2020] 2364/18.0BELSB
Court Name:
Central Administrative Court of the South
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Headnote: 

Since there is a high risk of exposure to inhuman and degrading treatment under Article 3 ECHR and Article 4 CFREU, Portugal should not allow the applicant’s transfer to Italy. The Court also found that there had been a violation of his right to a prior hearing, and that there is no obligation under EU Law of asylum seekers’ transfer once the DRIII is applied.

Facts: 

Before arriving to Portugal, the applicant had already presented two requests for international protection in Italy and Germany. In 2018, the applicant requested international protection from Portugal. Following this, the Immigration and Borders Service submitted a take back request to the Italian authorities. It was after that that the Portuguese authorities interviewed the claimant, who declared having previously been in Italy for eight months, and then in Germany for seven months. The applicant also claimed to have fled his home country because he was persecuted on account of his sexual orientation, and that he suffers from health issues.

On the 27th November 2018, the Portuguese Immigration and Borders Service declared the inadmissibility of the applicant’s request for international protection and ordered his transfer. The applicant filed a judicial action against this decision before the Administrative Court of Lisbon, which ruled in favour of its annulment. The Immigration and Borders Service then filed an appeal to the Central Administrative Court of the South.

Decision & Reasoning: 

Although the possibility of a transfer  to Italy was properly communicated to the applicant in this case, the Court found that he was not provided with a chance to explain all the relevant arguments which could be used against a possible transfer order, since the authoriites did not ask him why he refused to return to Italy. Therefore, the Court concluded there was a violation of his right to a prior hearing. Moreover, considering the applicant’s health issues and the fact that he had been previously subject to severe forms of violence due to his sexual orientation, the Immigration and Borders Service should have conducted a more diligent approach to his situation.

On another note, the Court clarified that, in accordance with Article 17 DRIII, if a Member State is confronted with a take back situation, it can still choose to assess a request for international protection presented by a third-country national, even if it is not considered the competent State to do so under DRIII rules.

The Italian reception of refugees’ system presents systemic failures, due to the country’s laws in what concerns the treatment of asylum seekers and international protection applicants, since it dictates an underfunding of programs and facilities dedicated to their reception. Those who have been transferred in the context of the DRIII face a high risk of deportation, and the Italian reception facilities are unsuitable to vulnerable people.

Article 4º CFREU and Article 3º ECHR both establish the principle of non-refoulement, from which emanates the prohibition of asylum seekers’ transfer to another Member State if that means that person will be exposed to a risk of torture or degrading treatment. The ECHR has stated that if a State’s asylum seekers’ reception system shows systemic failures, those who are sent there face a risk of degrading treatment.

Outcome: 

The Immigration and Borders Service decision is illegal, since it violates the applicant’s right to a prior hearing, as well as Article 3 ECHR, Article 4 CFREU and Articles 3 and 2 DRIII. The application for international protection should be considered admissible.

Observations/Comments: 

The new migration decree in Italy will include various modifications to previous security decrees issued under former Interior Minister Matteo Salvini.

The draft of the new decree establishes: (1) shorter waiting periods for obtaining Italian citizenship; (2) the social integration of refugees through the possibility of performing socially useful work; (3) and the elimination of million-euros fines placed on NGO ships. However, potential jail time for activists at sea remain. In addition to reforming the migrants’ reception system, it also provides for broadening conditions under which migrants can apply for humanitarian protection, plus the possibility for asylum seekers to register with the city registry, and to convert stay permits into work permits.

This new decree provides for a return to a "system of reception and integration": it considers not only those fleeing torture, but also those fleeing inhumane and degrading treatment.

Other sources cited: 

Domestic Case Law Cited

Portugal: A. v. Immigration and Borders Service, 30 January 2020 No. 1419/19.9BELSB

Portugal: M. v. Immigration and Borders Service, 30 January 2020 No. 1088/19.6BELSB

Portugal: A. v. Immigration and Borders Service, 30 January 2020 No. 1322/19.2BELSB

Portugal: A. v. Immigration and Borders Service, 27 February 2020 No. 1300/19.1BELSB

Portugal: A. v. Immigration and Borders Service, 16 April 2020 No. 1932/19.8BELSB

Other Member States' Case Law Cited

Luxembourg – Administrative Tribunal, 10 July 2018, Nº 41401/18

Other Sources Cited

To Dublin or not to Dublin? ECRE’s Assessment of the policy choices undermining the functioning of the Dublin Regulation, with recommendations for rights-based compliance: Policy-Note-16.pdf (ecre.org)

ASGI’s Country Report on Italy: Country Report - Italy | Asylum Information Database (asylumineurope.org)

“Housing out of reach? The reception of refugees and asylum seekers in Europe”, report published by AIDA and managed by ECRE: Housing out of reach? The reception of refugees and asylum seekers in Europe | Asylum Information Database (asylumineurope.org)

“Mutual Trust is Still not Enough: The situation of persons with special reception needs transferred to Italy under the Dublin III Regulation” report made by the Danish Refugee Council and the Swiss Refugee Council, published on the 12th December 2018: Mutual Trust is Still not Enough: The situation of persons with special reception needs transferred to Italy under the Dublin III Regulation - Italy | ReliefWeb

Netherlands’ December 2018 news on the suspension of families transfer order to Italy in compliance with the Dublin Regulation: Nederland stuurt jonge asielgezinnen voorlopig niet terug naar Italië | NOS

ECRE’s September 2018 news regarding Italy’s immigration decree which drops protection standards: Italy: Latest immigration decree drops protection standards* | European Council on Refugees and Exiles (ECRE)

ECRE’s December 2018 news regarding the situation of Italy and Vulnerable Dublin Returnees: Italy: Vulnerable Dublin Returnees at Risk of Destitution* | European Council on Refugees and Exiles (ECRE)

ECRE’s January 2020 news regarding a report on the effects of the “Security Decrees” on Migrants and Refugees in Sicily: Italy: Report on Effects of the “Security Decrees” on Migrants and Refugees in Sicily | European Council on Refugees and Exiles (ECRE

ECRE’s January 2020 news regarding a report made by the Swiss Refugee Council OSAR on the Reception System in Italy, focusing on the situation for Dublin Returnees: Italy: Updated Report on the Reception System with a Focus on the Situation for Dublin Returnees | European Council on Refugees and Exiles (ECRE)

JARMELA, Catarina: Audiência prévia nos procedimentos de proteção internacional [2019] in Julgar, Revista do Centro de Estudos Judiciários, 1.º semestre 2019, 307 – 311.

PINTO OLIVEIRA, Andreia Sofia: A Recusa de Pedidos de Asilo por “Inadmissibilidade” in Estudos em Comemoração do 10.º Aniversário da Licenciatura em Direito da Universidade do Minho (Almedina 2004).

GIL, Ana Rita: A crise migratória de 2015 e os direitos humanos das pessoas carecidas de proteção internacional: o direito europeu posto à prova, in Estudos em Homenagem ao Conselheiro Presidente Rui Moura Ramos (1st edn, Vol. I, Almedina 2016).

A Garantia de um Procedimento Justo no Direito Europeu de Asilo, In O Contencioso do Direito de Asilo e Proteção Subsidiária (Coleção Formação Inicial, Centro de Estudos Judiciários, 2016).

PINTO OLIVEIRA, Sofia: Direito de Asilo, in Tratado de Direito Administrativo Especial (Vol. VII, Almedina 2017).

CABRAL, Patrícia: Construção de uma Responsabilidade Europeia Além-Fronteiras, Dissertação apresentada para obtenção do Grau de Mestre, Faculdade de Direito da Universidade Nova (2015).