Common European Asylum System in a Changing World

Mohammad Khir Amayry, C-60/16 The CJEU ruled that Article 28 DRIII, read in the light of Article 6 of the EU Charter, does not preclude national legislation allowing for a detention to be maintained for no longer than two months where that detention begins after the requested Member State has accepted the take charge request, as long as the detention does not go beyond the time which is necessary to carry out the transfer. Second, that national legislation such as that in Sweden, which allows for a detention to be maintained for 3 or 12 months until the transfer is carried out, while following the DRIII and the guarantees under Article 6 of the EU Charter. Ibrahim, Sharqawi and Others and Magamadov – Joined Cases C-297/17, C-318/17, C-319/17, C-438/17 This case deals with a Dublin transfer and the principle of non-refoulement. The CJEU ruled that an asylum seeker may be transferred to the Member State that is normally responsible for processing their application or that has previously granted them subsidiary protection unless the expected living conditions in that Member State of those granted international protection would expose them to a situation of extreme material poverty, contrary to the prohibition of inhuman or degrading treatment inadequacies in the social system of the Member State concerned do not warrant, in and of themselves, the conclusion that there is a risk of such treatment. Selected ECtHR case law Tarakhel v. Switzerland, no. 29217/12, 4 November 2014 The case concerns the expulsion of asylum seekers in application of the EUDublin Regulation . Mr. G. Tarakhel and his family, Afghan nationals, arrived to Italy by boat on 16 July 2011. They then moved to Austria, where their asylum application was rejected, and lodged a new application in Switzerland. On the request of the Swiss authorities, Italy accepted to take back the applicants in accordance with the Dublin Regulation. The applicants challenged the transfer decision before Swiss Court and then before the ECtHR. As explicitly affirmed in the Tarakhel judgment of the ECtHR, the transferring State has the obligation to obtain guarantees from the responsible State that families with children will not be separated once they are taken charge of or taken back. A.S. v. France , no. 46240/15 (English summary), 19 April 2018 In this case a torture victim suffering from severe posttraumatic stress disorder, and benefiting from the support of his sisters in Geneva, was to be transferred to Italy. The A.S. judgment of the ECtHR clearly implies that the principles affirmed in Tarakhel (see above), including the principle of family unity, apply at the very least with respect to “critically ill” transferees. Furthermore the UN Committee Against Torture has more recently affirmed the applicability of duties comparable to those stemming from Tarakhel to torture victims.

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