Duty of investigation prior to a Dublin transfer to Greece

In August 2024, the State Secretariat for Migration (SEM) dismissed an asylum application by a Turkish national and ordered the transfer of the asylum seeker to Greece under the Dublin III Regulation. In doing so, the SEM relied upon the assurance of the Greek authorities that the person concerned would be guaranteed access to the asylum procedure and to appropriate accommodation in accordance with European Commission Recommendation (EU) 2016/2256 of 8 December 2016. The asylum seeker appealed this decision before the Federal Administrative Court (FAC).

Status of current case-law concerning transfers to Greece
In its reference judgment,¹ the FAC states that the case-law deriving from ECHR’s decision M.S.S. v. Belgium and Greece of 21 January 2011, and the FAC’s own precedents in judgments ATAF 2011/35 and ATAF 2011/36 have not been overturned and are still valid. This case-law shows that systemic deficiencies were identified in the Greek asylum system. According to these judgments, the presumption that all Member States of the Dublin area are safe countries and respect the principle of non-refoulement has become inoperative in the case of Greece; a transfer to this country may, however, be considered lawful by way of exception after due examination of the individual circumstances.

Violation of the inquisitorial principle
In the case at hand, the SEM violated its duty to investigate. Merely referring to the assurance of the Greek authorities and Commission Recommendation (EU) 2016/2256 without explicitly establishing whether or not systemic deficiencies exist in Greece at the present time is not sufficient for ordering the transfer of the asylum seeker to that country. All the more since the recommendation in question dates back to 2016 and that SEM’s practice in recent years has been not (or hardly) to order any transfers to Greece. Furthermore, the SEM must establish the present and decisive circumstances relating to the situation of asylum-seekers in Greece before explicitly indicating whether systemic deficiencies still exist and explaining whether the appellant can be transferred to that state.

The FAC therefore admits the appeal, cancels the SEM’s ruling, and refers the case back to the latter for additional investigation and a new decision. This Judgment is final and may not be appealed to the Federal Supreme Court. 

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¹ This judgment analyses the conditions of the existing situation in a given country and provides a legal assessment which holds not only for this case but for many other proceedings as well.