EU Court rebukes Italy: no unilateral Dublin suspensions, risk of infringement appeals

Brussels – A “mere unilateral announcement” is not enough to avoid the responsibilities set out in the Dublin Regulation on the reception of asylum seekers. The Court of Justice of the European Union has reprimanded the Italian government, which, at the end of 2022, having come to power just a few months earlier, had announced that it would no longer accept transfers of asylum seekers from other Member States, even if they fell within its jurisdiction. And even if stonewalling may ultimately shift the responsibility for examining asylum applications to the countries of second entry, the risk for Italy is another: “The Commission or any other Member State may bring an action for failure to fulfil obligations,” the Court suggests. 

The judgment published today (5 March) concerns the case of a Syrian citizen who entered Germany on 18 April 2023, and whose asylum application was rejected by the German authorities as inadmissible because, based on information contained in the Eurodac database, Berlin had identified the Republic of Italy as the Member State responsible for examining the application. A story that’s already all too well‑known: Italy’s leniency at internal borders, enabling secondary movements of migrants who reach Europe via its shores. The difference, however, is that in the case brought before the Court by a German judge, Germany submitted a request to the Italian authorities to take charge of the Syrian citizen, but received no response, and ordered his removal to Italy.

This is where the tug-of-war began: the asylum seeker lodged an appeal, and the issue of Italy’s refusal and the allocation of responsibility for examining applications for international protection ended up before the Court of Justice. The Court, based in Luxembourg, stated in its ruling that “the Member State designated as responsible under the criteria laid down in the Dublin III
Regulation cannot discharge itself, by a mere unilateral announcement, of its responsibilities under that
regulation.” The court argues that “the Member State
in question therefore remains, in the first instance, the Member State responsible.”

The fact is that the Italian authorities did not respond to Germany’s request to take back the asylum seeker. The transfer of the asylum seeker must be carried out within six months. If the transfer does not take place within the maximum time limit, “the Member State responsible is relieved of its obligation” to take charge or take back the person concerned, and responsibility is then transferred to the requesting Member State. This transfer of responsibility is a last resort, which takes place “regardless of the reasons” for the failure to take back the person concerned and, therefore, even when “the transfer of the person concerned could not be carried out within the
time limit on account of the unilateral suspension, by the Member State initially responsible, of the procedures for taking
charge and taking back.”

Otherwise, this blame-shifting between Member States risks preventing asylum seekers from having “effective access to the asylum procedure.” The obstinacy of the Italian government, therefore, pays off, one might conclude. At least until, as the ruling suggests, the European Commission or any Member State brings infringement proceedings against it before the Court of Justice, in order “to remedy a possible infringement of the Dublin III Regulation by the Member State initially responsible.”