On 13 April 2022, the District Court of the Hague gave its decision in a case concerning an Egyptian national whose asylum application in the Netherlands was rejected. The State Secretary rejected the applicant’s claim on the basis that Croatia was the responsible country. The rejection was challenged and the decision annulled, resulting in the State Secretary’s subsequent appeal to the District Court.

The District Court firstly set out the inter-state principle of the protection of legitimate expectations in which a Member State presumes that an asylum applicant’s treatment in the requested Member State complies with the provisions of the EU Charter, the Refugee Convention and the ECHR. It subsequently referred to Article 3(2) of the Dublin III Regulation and the criteria therein which provides an exception to the principle. The Court determined that to consider whether the State Secretary can no longer rely on the principle of inter-State protection of legitimate expectations it is necessary to examine whether summary returns constitute a fundamental systemic deficiency in the asylum procedure in the requested Member State under Article 3(2) and whether that deficiency is relevant to the specific transfer of applicants under the Dublin III Regulation.

In light of the first question, the Court considered Article 6 of the Procedures Directive and CJEU case law to determine that the right to make an application for asylum is a condition for the effectiveness of the right to asylum and that effective, expeditious and rapid access to this procedure must be ensured. It followed that summary returns are a denial of that legislation and these returns in Croatia constitute a fundamental systemic error in its asylum procedure within the meaning of Article 3(2), which reaches the high threshold of severity. Regarding the second question, the Court confirmed that there were serious indications that summary returns also take place with third-country nationals who have been readmitted by Croatia from other Member States and those who are on the territory at a distance from the border. It reasoned that due to this and the fact that Dublin claimants can move freely within Croatia as asylum applicants, the State Secretary should have carried out further research into the risks of expulsion for transferred Dublin claimants. The Court therefore concluded that the State Secretary did not carry out an investigation into the Article 4 of the Charter and Article 3 of the ECHR risks for the applicant and was not justified to rely on the principle of the inter-State protection of legitimate expectations for Croatia. It follows that the appeal was held as unfounded and the annulment of the transfer decision by the previous Court was confirmed.

Based on an unofficial translation within the EWLU team.