CJEU: AG Opinion in Cases C-490/16 A.S and C-646/16 Jafari, 8 June 2017

Thursday, June 8, 2017

On 8 June 2017, Advocate General Sharpston gave her opinion in cases C-490/16 A.S and C-646/16 Jafari, regarding the functioning of the Dublin Regulation in relation to the mass border crossings in the Western Balkans in 2015/2016.
In A.S., the applicant in the main proceedings is a Syrian national who lodged an asylum application in Slovenia. The applicant first travelled through a number of countries to Croatia. The Croatian authorities organised onwards transport to the Slovenian national border. The Slovenian authorities took the view that Croatia was the Member State responsible for examining his application as he had crossed that territory “irregularly”. In Jafari, the applicants are Afghan nationals who reached Austria in 2015 via the Western Balkan Route. The Austrian authorities considered Croatia the Member State responsible for the application as they had crossed that territory and as Greece could not be responsible due to systemic failings in the asylum procedure. According to AG Sharpston, the questions referred to the CJEU in both cases can be summarised as follows: (1) should the Dublin III Regulation be interpreted in conjunction with other EU acts?; (2) did the facilitation of crossing the territory by EU transit States amount to “visas” within the meaning of the Dublin Regulation?; (3) how should the phrase “irregularly crossed the border” be interpreted?; (4) do TCNs who were allowed to enter the Schengen area during the humanitarian crisis fall within the exceptions to the normal rules in the Schengen Borders Code? (5) what is the meaning of “visa waived entry” under the Dublin III Regulation?   
Regarding the first question, AG Sharpston is of the opinion that the Dublin III Regulation should be interpreted by reference to the wording, context and objectives of that Regulation alone, and not in conjunction with other EU acts. She notes that the Dublin Regulation is part of the Common European Asylum System and has a different purpose to that of the Schengen Borders Code or Return Directive. Moreover, there is no common legal basis for the three acts. Replying to the second question, the AG argues that facilitating the crossing of its territory does not equate to the issuance of a “visa” due to the lack of a number of formalities. With regard to the third question, she maintains that the term “irregular crossing” does not cover the situation in the main proceedings (Member States allowing a TCN to cross the external border of the EU and travel through other EU Member States), since Member States not only tolerated the mass border crossing but actively facilitated it. The Dublin Regulation, she argues, was not designed to cover such exceptional circumstances. Regarding the fourth question, AG Sharpston believes that the exceptional circumstances permitted Member States to apply the derogation in the Schengen Borders Code which allows them to authorise TCNs to cross the external border on humanitarian grounds. The AG does not consider necessary to conduct an individual assessment in these cases. On the last question, she rejects the understanding that the authorisation to enter the territory constituted “visa waived entry” for the purposes of the Dublin Regulation, since that was not set out in EU law.
In her conclusions, the Advocate General argues that the asylum applications in question in the main proceedings should be examined by the first Member State in which the applications were lodged (Slovenia in the case of A.S. and Austria in the case of Jafari).

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