C-194/19: CJEU rules circumstances subsequent to the Dublin transfer decision must be taken into account

Thursday, April 15, 2021

On 15 April 2021, the Court of Justice of the European Union (CJEU) published its judgment in H.A. v État belge (case C-194/19) concerning a request for a preliminary ruling, made in the context of proceedings regarding an action against a transfer decision taken under the Dublin III Regulation.
The applicant, H.A., is a third-country national who applied for international protection in Belgium in 2017. A decision to transfer him to Spain was adopted as the Spanish authorities had agreed to take charge of him. Shortly afterwards, H.A.’s brother also arrived in Belgium and lodged an application for international protection. H.A. sought to annul the transfer decision, claiming that as his brother arrived in Belgium shortly after the decision was taken in his case, their respective applications should be examined together to ensure the fairness of the procedure. However, the action was dismissed on the ground that the arrival of his brother in Belgium took place after the transfer decision was adopted and, therefore, could not be taken into consideration in the assessment of the lawfulness of the transfer decision. H.A. lodged an appeal before the Belgian Council of State, who decided to stay proceedings and asked the CJEU whether Article 27 of the Dublin III Regulation, considered alone or in conjunction with Article 47 of the Charter, must be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a ‘Dublin transfer’ decision.
In a Grand Chamber judgment, the CJEU ruled that an international protection applicant must be able to rely on circumstances subsequent to the adoption of a transfer decision in respect of which he or she exercises a remedy. Recalling its previous decisions in Shiri and Hasan, the Court held that an applicant for international protection must have an effective and rapid remedy available to him or her which enables that applicant to rely on circumstances subsequent to the adoption of a transfer decision, where the consideration of those circumstances is decisive for the correct application of the Dublin III Regulation. Additionally, the Court ruled that it is for each Member State to establish procedural rules for legal actions that would safeguard the right to an effective remedy under the Regulation, provided that these rules respect the EU law principles of equivalence and effectiveness.
The CJEU stated that an action for annulment brought against a transfer decision, where the court or tribunal seised cannot take into account circumstances subsequent to the decision which are decisive for the correct application of the Dublin III Regulation, does not ensure sufficient judicial protection and does not enable the person concerned to exercise their right under the Regulation and Article 47 of the Charter. However, it stated that such protection may be afforded to the applicant by a specific remedy entailing an ex nunc examination of the situation of the person concerned, the results of which are binding on the competent authorities, a remedy which may be exercised after such circumstances have arisen and which, in particular, is not made conditional on the deprivation of that person’s liberty or on the fact that implementation of that decision is imminent.

Photo: Transparency International, March 2013, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. 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.                               

Dublin Transfer
Effective remedy (right to)