State Secretary blocked from returning asylum seekers to Italy
The State Secretary for Justice and Security is no longer permitted to return to Italy asylum seekers who would normally be sent back under the European Dublin Regulation. The reason: the Italian authorities are unable to provide reception for them owing to the lack of reception facilities. Without reception, there is a genuine risk that their basic needs, such as shelter, food and running water, will not be met, which is a human rights violation. The Administrative Law Division of the Council of State issued this ruling today (26 April 2023) in two decisions. The decisions mean the state secretary must now process asylum applications normally processed by Italy under the European Dublin Regulation.
Background to the cases
The cases involve a Nigerian man and a man who claims to be from Eritrea. The Nigerian man first applied for asylum three times in Italy and then in the Netherlands. The other man entered Europe via Italy but did not apply for asylum there. The state secretary set the asylum applications aside with the intention of handing over both men to Italy. Under the European Dublin Regulation, Italy, as an EU Member State, is responsible for processing both asylum seekers' applications. However, they claim that the situation for asylum seekers for Italy violates human rights and are refusing to return.
Principle of mutual trust between Member States
Member States of the European Union are permitted to assume under the principle of mutual trust between Member States that the situation in another Member State does not violate human rights as defined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the European Union. That clears the way for EU Member States to return asylum seekers to the Member State where they first entered the EU. Nevertheless, there may be grounds to refrain from transferring asylum seekers to another EU member state if the situation does not meet the ECHR and the EU Charter requirements.
Italian authorities claim no reception possible
The Administrative Law Division has ruled that this is the case in Italy. Since December 2022, the Italian authorities have indicated on several occasions that the transfer of asylum seekers under the Dublin Regulation should be temporarily suspended due to the lack of reception facilities in Italy. It remains unclear when these problems will be resolved and transfers to Italy can be resumed. The Administrative Law Division has concluded that asylum seekers returned to Italy under the Dublin Regulation are not being offered reception by the Italian authorities. This places asylum seekers in a situation where their basic needs, such as shelter, food and running water, are left unmet.
Implications of the rulings
This implies that the secretary of state may not rely on on the principle of mutual trust in respect of Italy. Therefore, it is no longer possible for the Netherlands to hand over the asylum seekers to Italy. The secretary of state must now consider the applications of the two asylum seekers.
Read the full text of the Administrative Law Division rulings with case numbers 202207368/1 and 202300521/1 here (in Dutch).