A foreign national runs a real risk of ending up in a situation contrary to Article 3 of the ECHR and Article 4 of the EU Charter when transferred to Italy, country of entry in the EU: foreign nationals if surrendered to Italy may end up in a situation of very far-reaching material deprivation upon transfer to Italy, which prevents them from meeting the most important basic needs, such as shelter, food and running water.
Italy suffers from systemic deficiencies in the reception system such as to amount to inhuman and degrading treatment and to justify, as an exception to the principle of mutual trust among member states, a ban on the transfer of an asylum seeker to Italy under Article 3.2 of the Dublin Regulation.
(automatic non official translation, orginal here)
Council of State
Date of decision: 26 April 2023
Ruling on the appeal of:
[the foreign national],
against the judgment of the District Court of The Hague, sitting at Utrecht, of 21 December 2022 in Case No NL22.24285 in the proceedings between:
the foreign national **
the State Secretary for Justice and Security.
By decision of 28 November 2022, the State Secretary did not consider an application by the foreign national to grant him a temporary asylum residence permit.
By judgment of 21 December 2022, the court dismissed the foreign national's appeal against that decision as unfounded.
The foreign national appealed against this ruling.
The State Secretary submitted a further document at his request.
The Division heard the case, simultaneously with case no. 202300521/1/V1, at a hearing on 30 March 2023, at which the foreign national, represented by J.W.F. Menick, lawyer in Amsterdam, and the State Secretary, represented by D.P.A. van Laarhoven, appeared.
1. The foreign national claims to have Eritrean nationality and to have been born on [date of birth] 2006. He entered the European Union via Italy on 28 January 2022 and submitted an application for asylum in the Netherlands on 1 March 2022. The State Secretary did not consider the application by decision of 28 November 2022 (hereinafter: the transfer decision) because Italy is responsible for processing it under the Dublin Regulation.
1.1. This judgment relates to the question of whether the State Secretary was correct in assessing the application on the basis of the date of birth registered in Italy, i.e. [date of birth] 2004, as being the foreign national's age of majority (under 3 to 3.2).
This judgment also relates to the question whether the State Secretary was correct in taking the view that the foreign national would not run a real risk of ending up in a situation that was contrary to Article 3 of the ECHR and Article 4 of the EU Charter if he were transferred to Italy (under 4 to 4.4). In answering this question, the Division will consider the Italian authorities' 'circular letter' of 5 December 2022 and the subsequent notice, even though the foreign national did not invoke it until after the court's ruling. The Division does this for reasons of legal unity, legal development, legal protection in a general sense and the topicality value of the judgment for the handling of Dublin cases of aliens who invoke the above-mentioned notice from the Italian authorities. This review is limited, in view of Sections 8:65(1) and 8:69(1) of the General Administrative Law Act, to the moment of closure of the hearing before the Division on 30 March 2023 (compare the Division's ruling of 19 June 2015, ECLI:NL:RVS:2015:2017, at 2.3). The Division will therefore not consider the state of emergency declared by the Italian authorities on 11 April 2023.
2. Referring to the interstate principle of trust, the court held that the state secretary was right to assume the foreign national's age of majority. To this end, the court considered that the foreign national had not made it plausible, with the baptismal certificate he had submitted, the only document he had submitted, that the date of birth registered in Italy was incorrect. The court considered it significant in this respect that the baptismal certificate was not an identifying document within the meaning of section C1/4.3 of the Vc 2000, and that the foreign national could not use it to substantiate his alleged minority.
2.1. The District Court further held that the State Secretary was generally entitled to rely on the interstate principle of trust with regard to Italy and that the foreign national had not made it plausible, with his assertions about the poor reception in Italy and his reference to the AIDA report of 20 May 2022, that this premise did not apply to him. The court pointed out that should the foreign national experience problems with the asylum procedure or reception conditions in Italy, he could complain about them to the appropriate authorities.
Registration of date of birth in Italy
3. The foreign national complains in the first grievance that the court erred in considering that the State Secretary was right to take as a basis the date of birth registered in Italy. According to the foreign national, the court failed to recognise that an acquaintance provided the Italian authorities with an incorrect date of birth for him and that he had provided a beginning of proof with the original baptismal certificate that [date of birth] 2006 was his date of birth.
3.1. The court correctly considered that, in view of the principle of interstate trust, the State Secretary was in principle entitled to assume that the registration of the date of birth in Italy had been carefully carried out, and that it was up to the foreign national to make it plausible that this registration was incorrect. At the hearing before the Division, the foreign national referred to the Division's decision of 26 November 2021, ECLI:NL:RVS:2021:2659, at 4, from which it follows that a foreign national can also make it plausible with indicative documents that a date of birth registered in another Member State is incorrect. The District Court failed to recognise that the State Secretary's reasoning, reproduced in paragraph 2 of this judgment, did not properly justify the fact that the foreign national had failed to do so with the baptismal certificate he had submitted. The State Secretary did not consider the content of the submitted baptismal certificate in his assessment, and only took the position that the baptismal certificate could not count as an authentic and identifying document, as the baptismal certificate had not been issued by the Eritrean authorities and was not provided with a passport photograph. The Division also considers it significant that the State Secretary stated at the hearing before the Division that he had the original baptismal certificate examined for authenticity by Bureau Documents, but that he took the decision of 28 November 2022 without waiting for the result of that examination. The State Secretary's statement at the hearing that Bureau Documents concluded in the statement of enquiry of 30 November 2022 that the baptismal certificate was in all likelihood false does not eliminate the lack of care and reasoning of the decision of 28 November 2022, if only because this investigation result is not in the file available to the Division.
3.2. The grievance succeeds.
Violation of Article 3 of the ECHR and Article 4 of the EU Charter
4. The foreign national complains in the second and fourth grievances, supplemented at the hearing at the Division, that the District Court wrongly considered that the State Secretary was still justified in relying on the interstate principle of trust with regard to Italy. The foreign national argued that he had made it plausible that he would run a real risk of being treated contrary to Article 3 of the ECHR and Article 4 of the EU Charter if he were transferred to Italy, and in this context he referred to the circular letter of 5 December 2022 and the subsequent reporting by the Italian authorities, from which it followed, according to him, that Italy could not offer reception at present. The foreign national argued that the State Secretary was therefore obliged to include him in the national asylum procedure.
The interstate principle of trust
4.1. In assessing which Member State is responsible, under the applicable criteria, for processing an asylum application lodged by a foreign national with one of the Member States, the State Secretary starts from the presumption that the treatment of a foreign national in the requested Member State complies with the provisions of the EU Charter, the Refugee Convention and the ECHR (see the Court of Justice judgment of 19 March 2019, Jawo, ECLI:EU:C:2019:218, paragraphs 80 and 81). That presumption is rebuttable (see the same judgment, paragraphs 83-85) and it is up to an alien to do so. To do so, he may submit objective information on the functioning of the asylum system of the requested Member State and he may state facts or make statements about his experiences in the requested Member State that provide clues that the asylum procedure and/or reception conditions in that Member State contain systemic errors. Indeed, this standard set out in Article 3(2) of the Dublin Regulation is an exception to the interstate principle of trust, which allows the requesting Member State to assume that the treatment of the foreign national in the requested Member State complies with the provisions of the EU Charter, the Refugee Convention and the ECHR.
4.1.1. If the foreign national argues, by reference to objective information, that the State Secretary can no longer rely on the presumption that the requested Member State will comply with its international obligations, it is for the State Secretary to justify that he may still rely on that presumption (compare the Court's judgment of 16 February 2017, C.K., ECLI:EU:C:2017:127, paragraphs 75-77).
4.1.2. The State Secretary may do so by contesting, with reasons, the facts derived by the foreign national from the objective information or by explaining, with reasons, why he arrives at a different valuation of the facts alleged by the foreign national on the basis of the objective information submitted. To the extent that there is no difference between the foreign national and the State Secretary in the valuation of the objective information, the State Secretary may additionally motivate why the systemic deficiencies in the asylum procedure and/or reception conditions in the requested Member State are not fundamental or, if they are, these deficiencies do not reach the particularly high threshold of seriousness within the meaning of the Jawo judgment, paragraphs 91-93.
4.1.3. If, for the time being, the State Secretary fails to provide sound reasons to justify that he is still entitled to rely on the presumption and does not wish to draw the asylum application on himself, he is obliged to make further investigations in the requested Member State (see ECHR judgment of 21 January 2011, M.S.S. v Belgium and Greece, ECLI:CE:ECHR:2011:0121JUD003069609, para 359).
The reception situation in Italy
4.2. By 'circular letter' dated 5 December 2022, the Italian authorities requested EU Member States to temporarily suspend transfers to Italy for sudden technical reasons related to a lack of reception facilities. The 'circular letter' makes an exception for unaccompanied minors who can be reunited with family. In the circular letter dated 7 December 2022, the Italian authorities further explained that the need to suspend transfers stems from the high asylum influx. The State Secretary provided an overview of the communication between the Netherlands and Italy that took place after the 'circular letters'. It follows that the Italian authorities themselves subsequently suspended or cancelled Dublin transfers for December 2022, informing that a decision would be taken on 9 January 2023 on whether to resume transfers in January 2023. On 4 January 2023, the Italian authorities announced that the shortage of reception facilities still persisted and requested EU member states to cancel all transfers scheduled for January 2023 and schedule those transfers for February 2023, hoping that the situation would have improved by then. On 27 January 2023, the Italian authorities still requested EU member states to cancel transfers to Italy in the first week of February 2023, and on 7 February 2023 they again requested a suspension for one week. At the hearing, the State Secretary, when asked, stated that no further information had been received from Italy after 7 February 2023.
Judgement of the Division
4.3. It followed from the reports of the Italian authorities submitted by the foreign national that, due to the high influx of asylum seekers, there was a lack of available reception facilities in Italy, which had led the Italian authorities to request EU Member States to temporarily suspend transfers to Italy. In doing so, the foreign national has submitted objective information that provides evidence to support the view that the reception facilities in Italy contain systemic errors and that the State Secretary should no longer rely on the presumption that Italy will comply with its international obligations.
4.3.1. The State Secretary then argued that he may still rely on the presumption that Italy will comply with its international obligations, because it does not follow from the 'circular letter' of 5 December 2022 and the subsequent reporting by the Italian authorities that there is no reception available in Italy, but only that the reception facilities are under pressure. The State Secretary also took the view that the circumstance that the Italian authorities had requested the temporary suspension of transfers to Italy was a temporary, de facto transfer obstacle that did not render the determination of a Member State as responsible unlawful.
4.3.2. The Division does not follow the State Secretary in this argument. Although it appears from that reporting that the Italian authorities intend to resume the transfers at some point in time, it is not possible, also given the lack of information since 7 February 2023, to determine when the lack of reception facilities will be resolved and the transfers to Italy can be resumed. The Division infers from the reports of the Italian authorities that there are no reception facilities available for Dublin claimants in Italy. Although it does not automatically follow from the foregoing, according to the Division, that the Italian authorities are indifferent to the situation of foreign nationals, there is thus a real risk that, beyond their own will and choices, foreign nationals will end up in a situation of very far-reaching material deprivation, as referred to in paragraph 92 of the Jawo judgment, upon transfer to Italy, which prevents them from meeting the most important basic needs, such as shelter, food and running water.
4.3.3. As the State Secretary has not as yet succeeded in providing sound reasons to justify that he may still assume that Italy will comply with its international obligations, he is obliged, in view of the assessment framework set out in paragraphs 4.1 to 4.1.3 above, to conduct further investigations in Italy. As the Italian authorities themselves have indicated with the above-mentioned reporting that transfers to Italy are not possible due to the lack of reception facilities, with this state of affairs further investigation into the reception situation in Italy by the State Secretary does not make sense. The Division therefore concludes that, in these circumstances, the principle of interstate trust may not be applied to Italy and that the transfer decision taken by the State Secretary in respect of the foreign national is unlawful.
4.4. The grievances succeed.
5. The appeal is well-founded. The judgment of the district court is set aside. It is not necessary to discuss what the alien has further submitted. The appeal is well-founded and the decision of 28 November 2022 is set aside. The State Secretary must pay the costs of the proceedings.
The Administrative Law Division of the Council of State:
I. declares the appeal well-founded;
II. nullifies the judgment of the District Court of The Hague, sitting in Utrecht, of 21 December 2022 in case no. NL22.24285;
III. declares the appeal well-founded
IV. annuls the decision of 28 November 2022, [V-number];
V. orders the State Secretary for Justice and Security to reimburse the foreign national for the costs incurred in connection with the appeal and the appeal, to the amount of EUR 3,348.00, to be entirely attributed to legal assistance provided by a third party in a professional capacity.
Thus determined by H.G. Sevenster, chairman, and E. Steendijk and M. Soffers, members, in the presence of M.M. Mercelina, registrar.
Delivered in public on 26 April 2023