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Finland / Supreme Administrative Court / KHO:2016:53; 20.4.2016/1503

X v Finnish Immigration Service

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Decision date:

Key facts of the case: 

The Supreme Administrative Court was to decide whether the non-refoulement principle prevented the transfer of an Afghan asylum-seeker X to Hungary which by virtue of the Dublin III Regulation was primarily responsible for examining X’s application for international protection and which had agreed to the transfer. The Court noted that X had arrived in Hungary through Serbia, which Hungary (unlike other EU Member States) considered to be a safe country. It was possible that X is returned from Hungary first to Serbia and further to Afghanistan, without the possibility of having his asylum application examined on the merits in any country. X could lodge an appeal  against a negative decision by the Hungarian authorities with a Hungarian court and eventually take the case to the ECtHR. However, it was uncertain whether this was an effective remedy, because of the large number of asylum applications, the difficulties in arranging appropriate legal assistance and interpretation services, and other problems reportedly encountered by asylum-seekers in Hungary.

Outcome of the case: 

The Supreme Administrative Court studied at large the case law of the CEU and the ECtHR, national judgments of courts in other EU Member States, Hungarian national legislation and recent country reports on Hungary. It noted that although as a rule the transfer under the Dublin III Regulation must be made and the treshold for departing from that rule is high, there were strong grounds for believing that there were systemic flaws in the asylum procedure in Hungary. The Court referred to the principle of benefit of the doubt and to the principle of a human rights-friendly interpretation of the law and ruled that in uncertain cases the decision must be made in favour of the appellant. Considering the up-to-date country information it could not be reliably ascertained at present that X’s transfer to Hungary would not be in violation of Article 4 of the Charter and Article 3 of the ECHR. The Court emphasised, however, that the outcome of the case could be different, once new information is available, particularly concerning the classification of Serbia as a safe country, following possible changes in the implementation of Hungarian asylum legislation, through the decisions of the ECtHR or otherwise. The Court concluded that X’s asylum application was to be examined in Finland and referred the case back to the Immigration Service.