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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 129
al courts, may not transfer an asylum seeker to the ‘Member
State responsible’ [. . .] where they cannot be unaware that systemic
deficiencies in the asylum procedure and in the reception
conditions of asylum seekers in that Member State amount to
substantial grounds for believing that the asylum seeker would
face a real risk of being subjected to inhuman or degrading
treatment within the meaning of that provision. Subject to the
right itself to examine the application [. . .], the finding that it
is impossible to transfer an applicant to another Member State,
where that State is identified as the Member State responsible
in accordance with the criteria set out in [the Dublin Regulation],
entails that the Member State which should carry out that transfer
must continue to examine the criteria set out in that chapter
in order to establish whether one of the following criteria enables
another Member State to be identified as responsible for
the examination of the asylum application. The Member State
in which the asylum seeker is present must ensure that it does
not worsen a situation where the fundamental rights of that applicant
have been infringed by using a procedure for determining
the Member State responsible which takes an unreasonable
length of time. If necessary, the first mentioned Member State
must itself examine the application [. . .]”. 389
The new Dublin III Regulation has incorporated this approach
in Article 3(2): “Where it is impossible to transfer an applicant
to the Member State primarily designated as responsible
because there are substantial grounds for believing that
there are systemic flaws in the asylum procedure and in the
reception conditions for applicants in that Member State, resulting
in the risk of inhuman or degrading treatment within
the meaning of Artice 4 of the Charter of Fundamental Rights
of the European Union, the determining Member State shall
continue to examine the [other] criteria […] in order to establish
whether another Member State can be designated as
responsible. Where the transfer cannot be made pursuant to
389 N.S. v. Secretary of State for the Home Department and M.E. and Others v. Refugee Applications
Commissioner and Minister of Justice, Equality and Law Reform, CJEU, Cases C-411/10
and C-493/10, Judgment of 21 December 2011, ruling, para. 2. See also, Migrationsverket v.
Nurije Kastrati and Others, CJEU, Case C-620/10, Judgment of 3 May 2012; Bundesrepublik
Deutschland v. Kaveh Puid, CJEU, Case C-4/11, Judgment of 14 November 2013; CIMADE
and GISTI v. Ministre de l’Interieur, de l’Outre-mer, des Collectivités territoriales e de l’Immigration,
CJEU, Case C-179/11, Judgment of 27 September 2012; K v. Bundesasylamt,
CJEU, Case C-245/11, Judgment of 6 November 2012; Zuheyr Frayeh Halaf v. Darzhavna
agentsia za bezhantsite pri Ministerskia savet, CJEU, Case C-528/11, Judgment of 30 May
2013; MA, BT and DA v. Secretary of State for the Home Department, CJEU, Case C-648/11,
Judgment of 6 June 2013; Shamso Abdullahi v. Bundesasylamt, CJEU, Case C-394/12, Judgment
of 10 December 2013.