Scotland Court of Session: no need to review its jurisprudence regarding suspension of Dublin transfer by administrative decision in the light of CJEU’s decision in Shiri

Friday, March 2, 2018

On 2 March 2018, Lord Tyre of the Scottish Court of Session delivered his opinion in the petition OM v. the Secretary of State for the Home Department, which concerned a Sudanese national who applied for asylum in July 2014 and who challenged the Secretary of State decision to transfer him to Bulgaria under the Dublin III Regulation (DRIII). Pending the determination of other cases challenging the validity of the UK’s implementation of the Dublin III Regulation, the Secretary of State cancelled the removal directions with regard to the applicant. With the present petition, the applicant claims that the UK had become responsible for examining his application following the expiration of the six-month period, since his removal had been suspended by an administrative direction and not by any of the means listed in Article 27(3) DRIII. The applicant argued that the Court of Session had to revise its case-law, namely the decisions in MIAB v. SSHD and BM v. Advocate General, in view of the CJEU’s decision in C-360/17 Shiri.

The Court of Session recognised that some of the observations made in its previous case-law cannot stand in light of the CJEU’s decision in Shiri. This is the case, for instance, with regard to the Court of Session’s position that many of the time-limits in the Dublin III Regulation are solely intended to regulate inter-State relations, which is inconsistent with the CJEU’s posterior understanding in Shiri that an applicant is entitled to rely upon expiry of the time limit in order to challenge a Dublin transfer. However, the Court of Session determined that nothing in Shiri casts any doubt on the correctness of the Court’s views in MIAB and BM regarding the suspensive effect of an administrative cancellation of removal directions. The Court of Session recalled its view that it is immaterial whether the suspensive effect is achieved by an order of a court or by a decision of a competent authority.

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Dublin Transfer
Right to remain pending a decision (Suspensive effect)