Belgium: “implicit decision” to extend time limit to carry out Dublin transfer is an actionable measure and must respect right to defence

Date: 
Tuesday, May 8, 2018

On 8 May 2018, the Belgian Council for Alien Law Litigation (CALL) ruled on two cases (no. 203 684 and no. 203 685) that an implicit decision by national authorities to extend the time limit to transfer an asylum applicant from six to eighteen months, as per Article 29(2) of the Dublin III Regulation (DRIII), is a measure that can be challenged before national courts. The cases concerned, respectively, a Syrian and a Ghanaian nationals whose transfers to Italy were requested in application of the DRIII. The Belgian authorities informed their Italian counterparts about the decision to extend the time limit to carry out the transfer to eighteen months alleging that the applicants had absconded.

The Belgian CALL found that the right to defence under the Charter of Fundamental Rights of the European Union and the principle of good administration, particularly the duty to state reasons, as well as Article 62(2) of the Aliens Act, require an authority that wishes to resort to the possibility of extending the time limit to carry out a Dublin transfer to issue a substantiated decision in the form of a written act.

Moreover, since the extension of the time limit can have implications on the determination of the responsible Member State under the DRIII, as per the CJEU’s jurisprudence in C-670/16 Mengesteab and C-201/16 Shiri, the Council for Alien Law Litigation found that an applicant must be able to challenge such decision and the Council must be able to offer an effective judicial protection in that regard.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Tristan Wibault, ELENA Coordinator for Belgium and the lawyer in one of the cases, for bringing the cases to our attention.

 


 


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

 

                                                     

 

Keywords: 
Dublin Transfer
Effective remedy (right to)