International Protection and the Dublin Regulation: Fact Assessment in Remand Proceedings (Order No. 15773/2025)
The protection of asylum seekers is a crucial issue. Order No. 15773 of June 12, 2025, issued by the Court of Cassation (Pres. L. T., Rapporteur R. C.), clarifies the powers of the national judge in remand proceedings concerning the application of the "discretionary clause" of Regulation (EU) No. 604/2013 (Dublin III). This decision, in the case of M. v. H., is fundamental for the scope of judicial review and the consideration of new factual elements for more comprehensive protection of asylum seekers.
The Dublin Regulation and the Sovereignty Clause
Dublin III establishes the Member State responsible for examining applications for international protection, preventing multiple applications. Article 17 introduces the "discretionary clause," allowing a Member State, even if not responsible, to examine an application for humanitarian or family reasons. This is crucial for protecting vulnerable situations.
The Cassation Court's Ruling: A New Horizon for Remand Proceedings
Order No. 15773/2025 focuses on remand proceedings following the annulment of a transfer order. The Supreme Court has clarified the review that the national judge must exercise over the Member State's actions regarding Article 17. Here is the principle:
In remand proceedings following the annulment of a judicial order annulling a transfer decision, pursuant to Regulation (EU) No. 604/2013, the national judge, within the scope of reviewing the exercise of the discretionary clause, must assess whether the tacit refusal to exercise said clause appears justified in light of the arguments presented in the appeal or arising from the documents submitted by the parties, and verify whether relevant facts emerge for the purpose of protection, including national protection, implementing the constitutional right to asylum under Article 10 of the Constitution. New supervening facts, even as a result of the passage of time, or pre-existing facts not previously alleged, may be submitted.
This principle is of great significance. The national judge must substantially assess the justification for refusing to apply Article 17. The possibility of considering the following is crucial:
- New Supervening Facts: Circumstances that emerged after the initial decision, even due to the passage of time.
- Pre-existing Facts Not Alleged: Information that already existed but was not presented previously.
This openness is fundamental to ensuring the full implementation of the right to asylum (Art. 10 of the Constitution) and the protection of private and family life (Art. 8 ECHR), allowing for a complete and updated evidentiary framework.
Practical Implications and Asylum Seeker Protection
The decision strengthens the position of the asylum seeker and their legal representative, allowing for the submission of any element useful to demonstrate Italy's need to exercise the sovereignty clause. This flexibility is vital for a fairer justice system that is sensitive to personal dynamics, ensuring reasoned decisions in light of the most complete situation possible.
Conclusions
Order No. 15773/2025 represents a significant development in international protection jurisprudence. By emphasizing effective judicial review and the possibility of assessing new or pre-existing facts, the Supreme Court promotes a more humane and rights-protective approach. It reaffirms the centrality of the individual and the fundamental right to asylum, requiring national judges to conduct thorough and dynamic examinations for effective protection.
