Dublin transfers to Bulgaria: no systemic flaws but rather case-by-case analysis

The Federal Administrative Court (FAC) has considered the situation of asylum seekers in Bulgaria in the context of Dublin transfers. It concluded that there are no systemic flaws in the asylum procedure and reception conditions in Bulgaria which would justify a complete suspension of transfers to that country. A case-by-case examination will be required to determine whether or not the transfer to that country of a particular asylum seeker should be suspended.

 
 
Photo: Keystone
Foto: Keystone

The Chamber Presidents of Courts IV, V and VI agreed to publish this judgment as a "leading judgment” on 17 February 2020.

After having applied for asylum in Bulgaria, a Sri Lankan national came to Switzerland to submit a new asylum application. Finding that there were no grounds to prevent the transfer of the individual in question to Bulgaria, the State Secretariat for Migration (SEM) rendered a decision of non-consideration under the Dublin Regulation which has come into force. In the context of a request for reconsideration, the appellant argued that she suffered from post-traumatic stress disorder which could not be adequately treated in Bulgaria; that she was at risk of not being able to benefit from the usual reception conditions because her asylum application had already been rejected by the Bulgarian authorities; that she was even at risk of being detained and exposed to inhuman conditions and that she could be returned to her country of origin in violation of the principle of non-refoulement.

Following an appeal from the appellant against the SEM’s decision to reject the request for reconsideration, the FAC thoroughly examined the situation of asylum seekers in Bulgaria in general and the personal situation of the appellant in particular.

Absence of systemic flaws
On the basis of various reports, the FAC concluded that the asylum procedure and reception conditions in Bulgaria presented shortcomings which, while of concern, were not severe enough to amount to systemic flaws which would justify a complete suspension of transfers to Bulgaria.

Situation of particularly vulnerable asylum seekers
In the absence of systemic flaws, the FAC ruled that there were no grounds for a general suspension of transfers of particularly vulnerable asylum seekers to Bulgaria. Such a transfer, however, would only be possible on the condition that a detailed examination of each individual case is carried out in order to ensure that the asylum seeker in question would not face inhuman and degrading treatment upon their return to Bulgaria. This examination can also consider seeking concrete guarantees from the Bulgarian authorities prior to the execution of a transfer.

Examination of the particular case
In this case, the appellant displayed a particular vulnerability which justified the suspension of her transfer to Bulgaria. In this respect, the FAC took not only the appellant’s fragile state of health into consideration, but also considered the status of her asylum procedure in Bulgaria, the prospects for her medical care and, more generally, the reception (and detention) conditions she would face upon her return to this country.

Only a few Dublin cases concerning Bulgaria are submitted to the FAC each year. This judgment is final and may not be appealed to the Federal Supreme Court.

 
 

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