Austrian Administrative High Court refers preliminary questions to CJEU on the definition of visa under the Dublin Regulation and Schengen Borders Code

On the 14 December 2016 the Austrian Administrative High Court referred the following questions to the Court of Justice in C-646/16 Jafari on the interpretation to be given to the term “visa” under the Dublin Regulation III and Schengen Borders Code:

1. Are Articles 2 lit m, Article 12 and Article 13 of Regulation (EU) No. 604/2013, hereinafter: Dublin III-Regulation, to be interpreted in conjunction with other legal acts related to the Dublin III-Regulation or are said provisions to be interpreted independently and autonomously?

2. If the provisions of the Dublin III-Regulation are to be interpreted independently and autonomously from other legal acts:

2.a. Is the de facto tolerated entry into a MS’ territory for the sole purpose of transiting a MS and applying for international protection in another MS to be regarded as “visa” as defined by Article 2 lit m and Article 12 Dublin III-Regulation in cases – like the present – which occurred at a time when the national authorities of the involved MS are confronted with an extraordinary high number of persons demanding transit through their territory?

If the answer to question 2.a.) is affirmative:

2.b.In view of the de facto tolerated entry for the sole purpose of transit: Is this “visa” invalid once the person left the transit MS?

2.c.In view of the de facto tolerated entry for the sole purpose of transit: Is this “visa” still valid in case the person is still residing in the transit MS or will the “visa” become invalid once the applicant finally dismissed her/his plan to travel on to another MS?

2.d. Is the dismissal of the applicant’s original plan to travel on to another specific MS to be regarded as a fraudulent act after the issuance of a “visa” according to Article 12(5) Dublin III-Regulation, meaning that the “visa” issuing MS shall not be responsible?

If the answer to question 2.a.) is negative:

2.e. Is the passage “irregularly crossed the border into a Member State by land, sea or air having come from a third country” of Article 13(1) Dublin III-Regulation to be interpreted as meaning that there is no irregular crossing of the external border under the specific circumstances of the present cases?

3. If the provisions of the Dublin III-Regulation are to be interpreted in conjunction with other legal acts:

3.a. When assessing whether an “irregular crossing” according to Article 13(1) Dublin III-Regulation took place,  is it relevant to take into account whether the conditions of entry laid down in Regulation (EU) No. 562/2006, hereinafter: Schengen Borders Code, particularly its Article 5, are met?

If the answer to question 3.a.) is negative:

3.b. Which provisions of EU law are particularly relevant for assessing whether a person’s movement is to be qualified as “irregular crossing” of a border according to Article 13(1) Dublin III-Regulation?

If the answer to question 3.a.) is affirmative:

3.c. Is the de facto tolerated and not individually assessed entry on a MS’ territory for the sole purpose of transiting this MS and applying for international protection in another MS to be regarded as authorised entry as defined by Article 5(4) lit c Schengen Borders Code in cases – like the present – which occurred at a time when the national authorities of the involved MS are confronted with an extraordinary high number of persons demanding transit through their territory?

If the answers to questions 3.a.) and 3.c.) are in the affirmative:

3.d. Is the authorisation of entry according to Article 5(4) lit c Schengen Borders Code to be regarded as a permit equaling to the issuance of a visa according to Article 5(4) lit b Schengen Borders Code and thus also a “visa” according to Article 2 lit m Dublin III-Regulation, leading to the applicability of Article 12 Dublin III-Regulation when determining the responsible MS?

If the answers to questions 3.a.), 3.c.) and 3.d.) are in the affirmative:

3.e. In view of the de facto tolerated entry for the sole purpose of transit: Is this “visa” invalid once the person left the transit MS?

3.f. In view of the de facto tolerated entry for the sole purpose of transit: Is this “visa” still valid in case the person is still residing in the transit MS or will the “visa” be invalid once the applicant finally dismissed her/his plan to travel to another MS?

3.g. Is the dismissal of the applicants original plan to travel on to a specific MS to be regarded as a fraudulent act after the issuance of a “visa” according to Article 12(5) Dublin III-Regulation, meaning that the “visa” issuing MS shall not be responsible?

If the answers to questions 3.a.) and 3.c.) are affirmative, but the answer to question 3.d.)is negative:

3.h. Is the passage “irregularly crossed the border into a Member State by land, sea or air having come from a third country” of Article 13(1) Dublin III-Regulation to be interpreted meaning that there is no irregular crossing of the border when under specific circumstances – like the present – a person’s movement is to be qualified as authorised entry as defined by Article 5(4) lit c Schengen Borders Code?

EDAL and the ELENA Network would like to thank Leonhard Call and Gloria Kinsperger, ELENA Co-ordinators for Austria, for translating these questions.

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