Communicated on 3 September 2019

FIRST SECTION

Application no. 41100/19 A.B. and Others against Finland lodged on 2 August 2019

STATEMENT OF FACTS

The applicants, Mr A.B., who was born in 1973, his wife G.K. born in 1983 and their five children born in 2013, 2014, 2017 and 2018 respectively are Libyan nationals. They are represented before the Court by Ms K. Hytinantti , a lawyer practising in Helsinki.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 28 June 2018 the applicant family arrived in Finland with Schengen visas issued by Italy and sought asylum.

1. Asylum proceedings

On 28 November 2018 the Finnish Immigration Service ( Maahanmuuttovirasto , Migrationsverket ) ordered the applicants ’ removal to Italy. The Service noted that the Italian authorities had not replied to the Finnish authorities ’ query on whether they would agree to receive the applicants. Therefore the Finnish authorities concluded that the Italian authorities had agreed to receive them by default. According to the Dublin Regulation, Italy was in charge of the examination of the applicants ’ asylum application. The Italian health care system could provide the applicants the same services as in Finland. The Italian authorities had already in 2015 announced, after the Tarakhel judgment by the Court, that they would not provide individual assurances in such cases but that the Court ’ s judgment would be followed by virtue of that announcement. The list of suitable reception centres for families had been updated in 2016. The Service held that this announcement was a sufficient guarantee that the family ’ s special needs would be taken into account. The parents were capable of taking care of their children and it was in the best interest of the children to stay with their parents. It was not contrary to the best interest of the children to remove the whole family to Italy.

On 13 December 2018 the applicants appealed against the decision of the Immigration Service.

On 7 June 2019 the Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ) dismissed the applicants ’ appeal. It found unanimously that, even if there was no general impediment to remove asylum-seekers to Italy, the reception system in Italy posed serious doubts and that therefore, before removal, it needed to be ascertained that the family would be placed in conditions which were suitable for children. The Italian authorities had informed the member States about the changes caused by the so-called Salvini Decree (Degree No. 113/2018 on Security and Migration) in January 2019 and had given assurances that families continued to be placed in accommodation other than SPRAR-centres which fulfilled the criteria of keeping families together and protecting minors. Although the Salvini Decree diminished asylum-seekers ’ rights, especially vis-à-vis specialised medical care, there were no such systemic deficiencies in the Italian reception system, even after the amendments, that could prevent all removals of families with children to Italy. No evidence had been presented in the present case that any of the family members were in need of specialised care. The son with spinal cord disease had already been operated on and he needed to visit a hospital only for follow-up. It was thus not contrary to the best interest of the children to remove the whole family to Italy.

On 18 June 2019 the applicants further appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ), requesting also a stay on removal.

By the decision of 26 June 2019, the request for a stay on removal was refused.

On 29 July 2019 the Supreme Administrative Court refused the applicants leave to appeal. The removal decision is thus final and enforceable.

2. Proceedings before the Court

On 2 August 2019 the applicants lodged an application with the Court, accompanied by a request for an interim measure under Rule 39 of the Rules of Court.

On 5 August 2019 the Court decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Finland, under Rule 39, that the applicants should not be deported. This indication was valid until 26 August 2019.

On 26 August 2019, following the receipt of factual information from the Government, the Court decided to indicate to the Government, under Rule 39, that the applicants should not be deported from Finland until further notice .

According to the AIDA Asylum Information Database, Country Report on Italy, 2018 update, published in April 2019:

“The situation of Dublin returnees

According to Eurostat, Italy received 5,678 incoming transfers in 2017. In the first eleven months of 2018, it received 5,919 transfers, most of which from Germany and France.

Following the Tarakhel v. Switzerland ruling, in practice the guarantees requested were ensured mainly to families and vulnerable cases through a list of dedicated places in the SPRAR system (see Types of Accommodation), communicated since June 2015 to other countries ’ Dublin Units. However, following the 2018 reform of the reception system, Dublin returnees who are asylum seekers no longer have access to second-line reception; SPRAR now renamed SIPROIMI. Accordingly, places in second-line reception for vulnerable Dublin returnees are no longer reserved as asylum seekers do not have access to this type of accommodation.

On 12 December 2018 the Danish Refugee Council and Swiss Refugee Council published a report with their monitoring of the situation of 13 vulnerable Dublin returnees in Italy in 2017-2018. The report illustrates the arbitrariness underlying Dublin returnees ’ reception by the authorities, timely access to accommodation and to the asylum procedure, and quality of reception conditions. Many asylum seekers have had to wait for several hours or even days without any support at airports such as Rome Fiumicino Airport and Milan Malpensa Airport before being received by the police.

Some Dublin returnees were denied access to the Italian reception system upon arrival altogether or had to wait a long time before they were accommodated in SPRAR facilities. In its latest report of February 2018, MSF documented an increase of Dublin returnees among the homeless persons in Rome, Lazio who have no immediate and automatic access to the reception system.

It should be noted that if returnees had been placed in reception facilities and they had moved away, they could encounter problems on their return to Italy for their new accommodation request. Due to their first departure, in fact, and according to the rules provided for the Withdrawal of Reception Conditions, the Prefecture could deny them access to the reception system.

Substandard conditions in first reception centres and CAS were widely reported, falling far below standards for persons with special needs. The two organisations also found that oftentimes the receiving authorities were unaware of the specific vulnerability of the Dublin returnees. In one incident at Caserma Caraverzani , Udine, Friuli-Venezia Giulia, an Afghan asylum seeker returned from Austria to Italy committed suicide in August 2018. The person was under treatment by the local mental health service in Austria. It seems that no information was provided about his health status before or after the Dublin transfer.

Re-accessing the asylum procedure

Access to the asylum procedure is equally problematic. Asylum seekers returned under the Dublin Regulation have to approach the Questura to obtain an appointment to lodge their claim. However, the delay for such an appointment reaches several months in most cases. The competent Questura is often located very far from the airport and asylum seekers only have a few days to appear there; reported cases refer to persons arriving in Milan, Lombardy and invited to appear before the Questura of Catania, Sicily. In addition, people are neither accompanied to the competent Questura nor informed of the most suitable means of transport thereto, thereby adding further obstacles to reaching the Questura within the required time. In some cases, however, people are provided with tickets from the Prefecture desk at Milan Malpensa Airport.

Dublin returnees face different situations depending on whether or not they had applied for asylum in Italy before moving on to another European country, and whether or not the Territorial Commission had taken a decision on the application.”

The report “Mutual Trust is Still not Enough” by the Danish Refugee Council and the Swiss Refugee Council of 12 December 2018 sets out:

“3.3. The changes introduced by the Salvini Decree

Since Decree No. 113/2018 on Security and Migration (also called the ‘ Salvini Decree ’ ) entered into force on 5 October 2018 asylum seekers, except for unaccompanied minors, no longer have access to SPRAR centres. As a result, the name SPRAR was changed to System of Protection for Holders of International Protection and Unaccompanied Minors. Asylum seekers are now to be accommodated in the collective centres (CARA, CDA or CAS) until a final decision on their asylum application has been made. Except for unaccompanied minors, only those granted international protection (and their family members) can be accommodated in SPRAR centres. In its press release, the UNHCR voiced concerns about the negative impact of the measures introduced by the Decree on the Italian reception and asylum system.

On 25 October 2018 the Italian Ministry of Interior confirmed the practical consequences of the Salvini Decree in a letter addressed to all SPRAR centres. The letter specifies that asylum seekers already offered accommodation in a SPRAR centre before 5 October 2018 remain entitled to accommodation in a SPRAR centre, but henceforth no asylum seekers, except for unaccompanied minors, are allowed to enter and stay in a SPRAR centre. The letter from the Ministry of Interior explicitly mentions that also vulnerable asylum seekers are henceforth excluded from SPRAR centres.

Access to the Italian health care system, except for emergency treatment, is conditional on a person first obtaining a residence card in order to be issued a European Health Insurance Card, which will be valid for the same period as the residence card. Asylum seekers are only entitled to emergency treatment until their asylum application has been officially registered by the Questura . As the Salvini Decree determines that asylum seekers will no longer be issued with a residence card, asylum seekers will henceforth only have access to the health care services provided at their accommodation centre. The First-Line collective centres, where all newly registered asylum seekers will be accommodated, offer only limited access to emergency health care, whereby the Salvini Decree further restricts asylum seekers ’ access to specialized health care.

Other changes introduced by the Salvini Decree include the abolition of the ‘ humanitarian residence permit ’ , the form of protection that was previously the most used in Italy. To replace the humanitarian residence permit, the Salvini Decree introduced new residence permits for ‘ exceptional cases ’ .”

According to the Finnish Immigration Service ’ s country information concerning Italy, dated 30 January 2019 (in Finnish only), there is no information on how families removed to Italy under the Dublin Regulation and since the entry into force of the Salvini Degree have been placed. It appears that the placement of families was purely arbitrary even before the entry into force of the Salvini Decree. Many reception centres have been closed down and asylum-seekers have been evicted since the entry into force of the Salvini Decree.

COMPLAINT

The applicants complain that their removal to Italy under the Dublin Regulation will breach Article 3 of the Convention as in all likelihood they will not be provided with adequate reception facilities for the children or access to medical care . There is also a serious risk of the family being deported from Italy to Libya.

QUESTIONS TO THE PARTIES

1. In the light of the applicants ’ claims and the conditions for their accommodation in Italy, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order to Italy were enforced?

2. Before deciding on their expulsion , did the Finnish authorities consider the applicants ’ claim that they would be exposed to a risk of being subjected to inhuman treatment if returned to Italy ? In particular, did the Finnish authorities take sufficiently into account the applicants ’ family situation, the age and health of the children, and the current conditions for their accommodation in Italy in the light of the Court ’ s judgment in Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014 (extracts)?

The Government are asked to provide an update of the applicants ’ current family situation.