Switzerland - A., B., C. (Nigeria) v State Secretariat for Migration, 17 December 2019, No. E-962/2019

Article 3, para. 2 of the Dublin III Regulation

The FAC had to examine whether there were, under article 3 paragraph 2 of the Dublin III Regulation, systemic flaws in the Italian asylum procedure and reception conditions for applicants in Italy.

The SSM estimated that there were no substantial grounds for believing that there were such deficiencies in the Italian asylum system.

The FAC noted that Decree-Law 113/2018 of October 5th 2018 (also known as the ‘Salvini Decree’), had brought about important changes in the Italian asylum system, especially regarding the repeal of the humanitarian protection status, the newly established reception system, as well as difficulties in access to healthcare and the protection of vulnerable individuals (for more information, see Observations below). :

The Court concluded that, even though there were several obstacles impeding immediate access to asylum procedures and to adequate reception services in Italy, the Italian asylum system was not per se characterised by ‘systemic flaws’ which would expose applicants to the treatment prohibited under article 3 of the ECHR.

The FAC thus considered that article 3 paragraph 2 of the Dublin III Regulation did not apply in that case.

Article 17, para. 1 of the Dublin III Regulation

According to article 17, para. 1 of the Dublin III Regulation, a Member State can examine a claim for international protection even when it is not responsible for said examination, and, if necessary, the transferring State should suspend the transfer for as long as the applicant’s situation, or the destination country’s conditions,  do not allow such a transfer.

The FAC mentioned the  2014 Tarakhel ECHR case, where the Court stated that the reception conditions in Italy did not per se prevent returns of asylum seekers to this country – while noting that there remained ‘serious doubts’ about the Italian asylum system and required that swiss authorities obtained formal guarantees by Italian officials that applicants (and particularly families and vulnerable persons) would be received in specific, suitable facilities.

In the same judgement, the European Court had found that, because of the special measures required by States for vulnerable persons and, in particular, families with young children, the transferring State must obtain individual guarantees that the care system will cater for young children’s special needs and will preserve family unity. In failing to do so, the Swiss authorities would violate article 3 of the ECHR.

Because the applicants constituted a particularly vulnerable group in the present case, the Swiss authorities, before transfering the asylum seekers to Italy, were required to have at their disposal sufficient evidence concerning the specific structure of the destination, the accommodation conditions, and the preservation of family unity.

The SSM had found that the January 8th 2019 Circular (in which the Unit claimed that first reception centers ‘guaranteed the protection of fundamental rights’) was sufficient in providing the Swiss authorities with concrete guarantee regarding family accommodation in Italy.

However, the Federal Administrative Court - observing that the Circular neither mentioned the number of places reserved for families, nor provided any detail regarding the concrete, material care system in force in the first reception centers – concluded that the Swiss authorities did not, as required by the ECHR in the Tarakhel case, have sufficiently concrete and precise guarantees on the reception conditions for families in first reception centers in Italy.

It therefore considered that the transfer could not take place. The SSM’s decision was annulled.