CJEU: AG Opinions, Case C-63/15 Ghezelbash and Case C-155/15 Karim

Thursday, March 17, 2016

Advocate General Sharpston has given her Opinions in cases C-63/15 Ghezelbash and C-155/15 Karim which both relate to the scope of the right to an effective remedy in recital 19 and Article 27(1) of the Dublin III Regulation  (DRIII).

CJEU: Case C-63/15 Ghezelbash 

Mr Ghezelbash, an Iranian national, had his asylum claim in the Netherlands rejected following acceptance of a ‘take back’ request by France pursuant to Article 12(4) DRIII. After being informed of this, the applicant submitted circumstantial evidence in support of his claims that he had returned to Iran from France for over three months, and argued that the Netherlands was the responsible Member State (MS), as this was where he had lodged his first asylum claim. The Rechtbank den Haag requested a ruling from the CJEU on whether the applicant had the right to an effective legal remedy to appeal against the application of the Chapter III criteria used to determine the responsible MS.

AG Sharpston considers that DRIII is aimed at establishing a clear, workable method for rapidly determining the MS responsible to enable the expeditious processing of asylum claims, but also aims to improve the legal protection for asylum applicants. Recital 19 DRIII has two limbs, guaranteeing the right to an effective remedy against transfers covering ‘the application of the Regulation’ and the ‘legal and factual situation’ in the MS of transfer. The former must include the manner in which DRIII is applied, whilst the latter is now codified in Article 3(2). She sets out the three alternatives argued before the Court in relation to the scope of effective remedy under Article 27 DRIII.

1.       The maintenance of the CJEU decision in case C-394/12 Abdullahi

This option is rejected by AG Sharpston given her interpretation of the first limb of recital 19 of DRIII; the specific and complex factual scenario in Abdullahi which is distinguishable from the circumstances of this case; and the fact that Abdullahi related to Article 19 of the Dublin II Regulation, which differs significantly from Article 27(1) DRIII.

2.       Article 27(1) also creates a right of appeal in circumstances where DRIII has conferred rights on individuals aimed at protecting fundamental rights, which may be infringed by transfer

The AG considers that DRIII is not purely an inter-State instrument as it has introduced and reinforced certain substantive individual rights and safeguards. The scheme of Article 27 DRIII gives MSs flexibility to set out the rules for exercise of appeal, while the time limits and deadlines in DRIII generally make the process more speedy and efficient as compared to its predecessor. This enables MSs to act effectively to maintain the smooth working of DRIII even if there are frivolous or vexations appeals. Enabling an appeal against the misapplication of Chapter III criteria would not ‘open the floodgates’, and is consistent with the ruling in Petrosian and the rule of law. Article 27 protects the individual against disregard or incorrect characterisation of the relevant facts and against misinterpretation and misapplication of the relevant law.

3.       Article 27(1) confers the right of appeal against the application of the rules in DRIII, including the Chapter III allocation criteria, to the facts.

AG Sharpston considers that the principles of the right to defence (MM) and the right to be heard are relevant. Article 47 of the Charter, Article 13 ECHR and ECtHR case law provide that there must be effective domestic remedies to deal with the substance of an arguable complaint. Article 47 of the Charter requires an assessment of the lawfulness of the grounds which were the basis of the transfer decision and whether it was taken on a sufficiently solid factual basis.

She concludes that Article 27(1) DRIII should be interpreted as allowing an applicant to challenge, on appeal or by review, a transfer decision and request the national court to verify whether the Chapter III allocation criteria were correctly applied to his case.

For further information please see the oral submissions by counsel for Mr Ghezelbash.

CJEU: Case C-155/15 Karim

Mr Karim is a Syrian national who had his asylum claim in Sweden rejected after Slovenia accepted a ‘take back’ request pursuant to Article 13 DRIII. Slovenia confirmed its willingness to process the asylum claim after being informed of additional information which indicated that Mr Karim had left the territory of the Member States for over three months, in circumstances covered by Article 19(2). The applicant appealed against the transfer decision, and the Stockholm Administrative Court of Appeal requested a preliminary ruling.

AG Sharpston refers to her analysis in Ghezelbash, finding that Abdullahi is no longer applicable and that Article 27(1) allows the challenge of a transfer decision on the basis of misapplication of Chapter III criteria. She adds that this is necessary to allow an individual to effectively make his views known in relation to a transfer decision.

In relation to the second question, the AG notes that Slovenia’s acceptance of responsibility is not a transfer decision, so is not amenable to appeal under Article 27(1). However the assessment by the Swedish authorities of the information provided by Mr Karim in deciding to make a transfer decision is relevant to whether it correctly applied the Chapter III criteria. The review of this is a matter for national procedural rules. If it is established that he left the EU territory for over three months, meeting the conditions in Article 19(2) DRIII, any subsequent asylum application would give rise to a fresh procedure for determining the responsible MS. 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.

Dublin Transfer
Effective remedy (right to)
Procedural guarantees
Responsibility for examining application