CJEU – Joined Cases C 582/17 and C 583/17, H. and R. v. Staatssecretaris van Veiligheid en Justitie, 2 April 2019

The CJEU ruled that a third-country national who lodged an application for international protection in a first Member State, then left and subsequently lodged a new application in a second Member State is not entitled to rely, in an action brought under Article 27(1) DRIII in that second Member State against a decision to transfer them, on the criterion for defining responsibility stablished in Article 9. To conclude otherwise would not be in conformity with the Regulation’s general purpose to prevent secondary movements of individuals and the principle that an application for international protection must be assessed by a single Member State.

The CJEU also concluded that in the cases referred to in Article 20(5) DRIII, a possible transfer could occur without previously having been established that the requested Member State is responsible for examining the application. This is because the exercise of a take back request does not presume the responsibility of the requested Member State to examine the application, but that that Member State satisfies the conditions laid down in Article 20(5) or 18(1) (b) to (d). Adding to that, in a situation covered by Article 20(5), a Member State cannot issue a take back request when the applicant has provided reliable information establishing that that Member State must be regarded as responsible for the application.

Facts:

On 21 January 2016, H. lodged an application for international protection in the Netherlands. Two months later, the State Secretary submitted to the German authorities a take back request.

The State Secretary decided not to examine H.’s application. The applicant reacted to the decision filing an action before the Rechtbank Den Haag, zittingsplaats Groningen. The Court upheld the decision and annulled the verdict of the State Secretary. H. and the State Secretary made an appeal to the Raad van State, which submitted a question to the CJEU.

Regarding the application for international protection lodged by R. on 9 March 2016 in the Netherlands, the State Secretary also requested the German authorities to take her back, which was accepted by the latter.

The State Secretary then decided not to examine R’s application, who then brought an action against that decision before the Rechtbank Den Haag zittingsplaats ’s-Hertogenbosch, which ended up annulling the decision of the State Secretary.

The State Secretary also appealed before the Raad van State, which referred two questions to the CJEU.

Decision & Reasoning:

According to the Court, the applicants’ situations fall within the scope of the take back procedure.

Articles 23(1) and 24(1) DRIII establish that the take back procedure is applicable to the persons referred both in Article 20(5) and Article 18(1)(b) to (d). Article 20(5) applies to an applicant who lodges an application for international protection in a Member State after withdrawing his/her first application made in a different Member State. Therefore, an applicant who has notified the authorities of the first Member State in which he/she had lodged his/her application of his/her wish to withdraw it before that process is completed, could be relocated to the first Member State for that process to be finalized. This should also be possible when an applicant has left that first Member State, before the process of determining the State responsible for examining the application has been completed, without informing it of his/her wish to withdraw the application and in which there is still an ongoing process.

An applicant’s departure from the territory of a Member State in which it was lodged a request for international protection should be regarded as a withdrawal of that application.

Article 18(1)(b) to (d) only applies if the Member State in which an application was previously lodged has completed the procedure for determining responsibility by accepting that it is responsible for examining that application and has started to do it in accordance with Directive 2013/32.

The Court concluded that Articles 23(1) and 24(1) DRIII provide for the possibility of submitting a take back request when the requesting Member State considers that another Member State is ‘responsible in accordance with Article 20(5) and Article 18(1)[(b) to (d)]’, and not when it considers that it is responsible for assessing the application. The term “responsible” is used in Article 23(1) and 24(1) differently from the way it is used in Article 21(1), since it does not relate specifically to the responsibility to examine the application. The wording of Articles 18(2) and 20(5) demonstrates that the purpose of the transfer to the Member State bound by a duty to take back is not to complete the examination of that application. That would be contrary to the spirit of Article 20(5), which specifies that the purpose of taking back is to enable the Member State to complete the process of determining the referred responsibility.

So, in accordance with Articles 23(1) and 24(1), the submission of a take back request presumes that the Member State satisfies the conditions laid down in Articles 20(5) or 18(1)(b) to (d). Therefore, the obligation to take back is enforced on the Member State with which that application was first lodged.

The obligations to take back that are set out on Article 18(1)(b) to (d) DRIII are applicable only if the process of determining the State responsible for assessing the application has already been completed in the requested Member State, resulting in that State’s acknowledgment that it was responsible for conducting that examination.

The referring Court had reached the conclusion that a take back request can only be made if the requested Member State can be designated as the one responsible, in accordance with the legal criteria for determining responsibility. The ECHR reacted stating that if that were the case, both the take charge and take back processes would form a single procedure. If EU Law had intended to set up a single procedure, it would not have chosen to establish the existence of two separate procedures. That interpretation would also imply that the second Member State could re-examine the conclusion reached by the first one regarding its own responsibility, in so far as the persons concerned leave the territory of that Member State after it has started examining their applications. That would risk encouraging third-country nationals who applied for international protection in a certain territory to travel to other Member States, causing secondary movements of people, which is what the DRIII seeks to prevent.

The CJEU concluded that in the cases referred to in Article 23(1) and 24(1) DRIII, the competent authorities are not required, before making a take back request to another Member State, to establish whether the latter is accountable for assessing the application. As a result, in the cases referred to in Article 20(5) DRIII, a possible transfer could occur without previously having been established that the requested Member State is responsible for examining the application.

A Member State cannot make a take back request if the person concerned has provided information clearly establishing that that Member State must be regarded as the one responsible for assessing the application. In such a situation, it is for that Member State to accept its own responsibility.

Summarizing, the Court first held that the second Member State is not obliged to determine its own responsibility for examining the application, by taking into consideration the criteria under Chapter III of the DRIII and before they make a take back request. This is because, under Articles 23(1) and 24(1) DRIII, the exercise of a take back request presumes not the responsibility of the requested Member State to examine the application, but that that Member State satisfies the conditions laid down in Article 20(5) or 18(1) (b) to (d).

In light of the above, it found that in a situation covered by Article 20(5), a Member State cannot issue a take back request when the applicant has provided reliable information establishing that that Member State must be regarded as responsible for the application. In this case, the CJEU concluded that the applicant could invoke Article 9 criteria for determining responsibility.

Outcome:

The Dublin III Regulation must be interpreted as meaning that a third-country national who lodged an application for international protection in a first Member State, then left and subsequently lodged a new application in a second Member State:

(1) is not entitled to count, in an action brought under Article 27(1) of the Regulation in that second Member State against a decision of transference, on the criterion for defining responsibility established in Article 9;

(2) can invoke that criterion in a situation covered by Article 20(5) of the Regulation, if he/she has provided the competent authority of the requesting Member State with information undoubtedly establishing that the Member State should be regarded as the one responsible for assessing the application.

Observations/Comments:

This summary was written by Matilde Chora, LLM Student at Queen Mary University London.

Case Law Cited:

CJEU - C 670/16, Mengesteab, 26 July 2017

CJEU - C 60/16, Khir Amayry, 13 September 2017

CJEU - Case C 201/16, Shiri, 25 October 2017

CJEU - Case C-360/16, Hasan

CJEU - C‑490/16, A.S. v Republika Slovenija

CJEU - Case C-155/15, George Karim v Migrationsverket

CJEU - C‑63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie

CJEU - C-695/15, Shiraz Baig Mirza v Bevándorlási és Állampolgársági Hivatal

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