Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 18 - Right to asylum
Article 19 - Protection in the event of removal, expulsion or extradition
Key facts of the case:
A was a Nigerian citizen and had arrived in Italy in 2005. B had been born in Italy in 2012. Since 2012 both A and B had a long-term resident residence permit for third-country nationals in Italy. After learving Italy, A and her child B applied for asylum in Finland. A claimed that the reception conditions for asylum seekers in Italy did not correspond to the EU minimum standards. She referred to economic problems and felt she and her child had no future in Italy. She also claimed she had been a victim of human trafficking in Morocco before coming to Italy. The Finnish Immigration Service rejected the asylum application and decided that A and B are transferred back to Italy. According to the Dublin II Regulation, Italy was the country responsible for examining the application. The Supreme Administrative Court assessed the question whether Finland should assume the examination of the application by applying the derogation in Article 3(2) of the Dublin II Regulation. The Court also examined whether the applicant’s deportation to Italy was against the principle of non-refoulement as prescribed in Article 3 of the ECHR, Article 4 the Charter and section 147 of the Aliens Act, taking also into account the best interests of the child.
Outcome of the case:
With reference to a UNHCR report on refugee protection in Italy (2013), among other sources, the Supreme Administrative Court found that there were no systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in Italy which would provide substantial grounds for believing that the applicant, if sent back to Italy, would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the Charter. Regarding the applicant’s individual circumstances, the Court noted that both the mother and the child were in good health and the child had been duly cared for. The alleged human trafficking had taken place in Morocco several years before A’s arrival in Italy. Both A and B had long-term residence permits in Italy by which they were guaranteed more extensive fundamental rights as compared to the rights of asylum seekers. Their situation was thus not comparable to that of asylum seekers entering the EU for the first time. The Court concluded that there was nothing to indicate that due of the applicant’s individual circumstances, transferring A and B back to Italy would mean they would be likely to be subjected to inhuman or degrading treatment or the risk thereof, or that their deportation would be against the best interests of the child. The Court concluded that in this case Article 3 of the ECHR or section 147 of the Aliens Act did not prevent deportation and that there were no grounds to apply the derogation prescribed in section 3(2) of the Dublin II Regulation.
The main rule is that the asylum applicant is sent back to the state which is responsible for examining the asylum application in accordance with the Dublin II Regulation. However, according to the case law of the ECJ, sending the applicant back is not possible in such exceptional circumstances where a member state cannot be unaware of the fact that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in the receiving country provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights.
In a report issued in 2013, the UNHCR found that despite deficiencies, the Italian asylum system mostly provides for a reasonable level of protection and there was no recommendation by the UNHCR on the termination of returning asylum seekers to Italy. Albeit that the number of asylum seekers arriving in Italy has again increased in 2014, the Supreme Administrative Court still found, on the basis of all information submitted in the case, that there were no systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in Italy which would provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights. This assessment is supported by the decision of 4 November 2014 by the European Court of Human Rights in the case of Tarakhel v. Switzerland (paragraphs 114-115) and the fact that the EU Commission has not initiated proceedings against Italy for failure to fulfil its obligations under Directives 2003/9/EC, 2004/83/EC or 2005/85/EC. There were no general grounds pertaining to the asylum procedure and the conditions for the reception of asylum applicants in Italy that would prevent it that the applicant and her child are returned to Italy.