Luxembourg - Administrative Tribunal, 28 March 2017, 2017-03-28_39098 and 39099

Country of Decision:
Country of Applicant:
Date of Decision:
28-03-2017
Citation:
2017-03-28_39098 and 39099
Court Name:
Administrative Tribunal, 3rd Chamber
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Headnote: 

Article 10 of Dublin III is inapplicable; Articles 9, 10 and 11 of the regulation provide for three different procedural situations, the applicant’s claim could lead to a separation of the family. 

Facts: 

On 26 August 2016, the applicant lodged a claim for international protection in Luxembourg, his wife and children doing the same four days later. The interviews took place the same days the applications were lodged. During the second interview, the authorities found that the female applicant held a Polish visa that was valid from 19 August to 02 September 2016.               

On 27 September, the female applicant was heard again in order to determine the responsible State in relation to the Dublin III Regulation. By way of mail, the applicant asked to benefit from Art. 10 of the Regulation, which was subsequently refused.  

Following a request by Luxembourg, Poland agreed to take responsibility of the asylum application as provided for in Art. 12(2) of the Regulation.  The authorities of Luxembourg subsequently informed the couple of the imminent transfer of the female applicant as provided for in Art. 28(1) of the Regulation.

It is therefore against this implicit refusal decision (the transfer to Poland equated a negative decision to grant international protection) that the couple have decided to lodge an appeal against this decision.  

Decision & Reasoning: 

Regarding the applicability of Art. 10 of the Dublin III Regulation, the court found that because the concept of “written” was not defined, it subsequently proceeded to do so. The court based itself on the recent judgment and defined it as “all types of writing clearly worded”. The court further established that the applicant’s request to benefit from the provisions of this article cannot be construed as negative even if the request was followed by more than three months of silence. The administrative judge did not use European law to establish a presumption of refusal in the context of an absence of answer concerning the article mentioned above.

Additionally, the judge analysed articles 9, 10 and 11 of the Regulation and came to the conclusion that all provided for a precise procedural situation:

o   Article 9 provided for the situation where asylum seeker A has requested international protection but a member of his family had already applied for international protection in another Member State.

o   Article 10 provided for the situation where asylum seeker A applies for asylum in a Member State but asylum seeker B (member of his family) had already applied in a different Member State, in which case the responsible State was already established and the examination of the merits of the application was ongoing.

o   Article 11 provided for the situation where applicant A has applied for asylum in one Member State, but that applicant B (member of his family) has applied for asylum in another Member State and that the process is still ongoing and where the responsible State has not yet been established.

As a result, because the responsible State had yet to be determined in the case of the first application, Article 11 was to be applied here.

Outcome: 

The administrative tribunal, having established that all the legal provisions pointed towards Poland, declared the appeal inadmissible on the principal level but admissible on the subsidiarity level (concerning the annulment of the decision). 

Subsequent Proceedings : 

 The judgement finds that it is up to the national judge to verify the good application of the Dublin III criteria : it finds that the administrative jurisdiction of Luxembourg is fully aware and upholds in good faith the European mandate which is incumbent on it.

The tribunal followed the same analysis of Article 12 as it did for Articles 9, 10 and 11 of the Regulation regarding the Polish visa that the wife of the applicant holds and came to the conclusion that Poland was responsible here as well. This illustrated that, for the Luxembourg jurisdictions at least; the concept of family unity would not be an obstacle to the application of the Dublin III criteria. 

Observations/Comments: 

The original version of this summary was written by Passerell a.s.b.l. The translation into English was completed by Jessica Pradille. 

Case Law Cited: 

Luxembourg - Administrative Tribunal, 20 January 2017, n° 38741 du rôle