Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

128 | PRACTITIONERS GUIDE No. 6
In the absence of a family member, a sibling or a relative, the
Member State responsible is that where the minor has lodged
his or her application for international protection. 383 The new
Dublin III Regulation also includes an exception for vulnerable
persons who are dependent on the assistance of their
child, sibling or parent legally resident in one Member State,
in which case that Member State becomes responsible for the
application for international protection. 384 The exception also
extends to the case in which “his or her child, sibling or parent
legally resident in one of the Member States is dependent on
the assistance of the applicant”. 385
The country responsible must take charge of the applicant and
the asylum application, and take back the applicant for international
protection, if he or she is present in another Member
State. 386
The European Court of Human Rights held in the case M.S.S. v.
Belgium and Greece that States may not avoid their international
responsibility under the principle of non-refoulement simply
by relying on the requirements of the Dublin II Regulation.
The Court ruled that, whenever an automatic transfer to a third
country in implementation of the Dublin Regulation might risk
breach of the principle of non-refoulement, States must avail
themselves of the “sovereignity clause” of then Article 3.2 of
the Regulation (currently Article 17) in order to avoid breaching
their obligations under the European Convention of Human
Rights. 387 The Court stressed that “[w]hen they apply the Dublin
Regulation [. . .] the States must make sure that the intermediary
country’s asylum procedure affords sufficient guarantees
to avoid an asylum seeker being removed, directly or indirectly,
to his country of origin without any evaluation of the risks he
faces” 388 of being subjected to a serious violation of human rights.
In a line of subsequent cases, the Court of Justice of the
European Union has held that pursuant to Article 4 of the EU
Charter of Fundamental Rights, prohibiting of inhuman and
degrading treatment “Member States, including the nation-
383 Ibid., Article 8.
384 Ibid., Article 16.
385 Ibid., Article 16.
386 Ibid., Article 18 and following.
387 M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, paras. 339–340.
388 Ibid., para. 342. See also, Mohammed v. Austria, ECtHR, Application No. 2283/12, Judgment
of 6 June 2013, para. 93; Sharifi v. Austria, ECtHR, Application No. 60104/08, Judgment of
5 December 2013.