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

The lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1). In an appeal against a Dublin transfer which has suspensive effect the period listed in Articles 29(1) and (2) of the DR III does not start running until the final decision on that appeal.

A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims.

Facts:

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” as per Article 13(1) of the DR III and therefore lodged a take charge request under Article 21 of the DR III to the Croatian authorities who accepted the request. A.S. subsequently appealed against this decision at different instances and the Slovenian Supreme Court decided to stay proceedings and refer a set of questions to the CJEU concerning the interpretation of Articles 13(1) and 27 of the Dublin Regulation.

As in Jafari this case was dealt within the urgent procedure.

Decision & Reasoning:

Firstly, and in respect of whether Article 27(1) allows an applicant for international protection to appeal against an incorrect application of the criteria under Dublin III for responsibility determination, the court reaffirmed its understanding in Ghezelbash. In particular, the effective remedy under DRIII covers both the examination of the application of the Regulation (e.g. the criteria) and the examination of the legal and factual situation in the MS to which the applicant will be transferred. Therefore, whilst Ghezelbash applied to Article 12 it applies, mutatis mutandis, to Article 13(1). The Court further underlines that an applicant may only be notified of the transfer decision after the requested Member States has agreed to take charge or take back of the applicant. If judicial review were to be excluded at that stage it would deprive the Regulation of most of its practical effect.

Secondly, the Court reiterates its finding in Jafari that a Member State cannot be absolved of its responsibility for an international protection claim when it decides to authorise persons who do not have a visa entry to the territory on humanitarian grounds. Such a person must be viewed as having irregularly crossed the territory of that Member State within the meaning of Article 13(1). The arrival of an unusually large number of third-country nationals does not affect that interpretation. Agin, however Articles 3(2) of the DR III and4 of the Charter apply preventing an applicant from being returned if such a transfer would entail a real risk of the person concerned suffering inhuman or degrading treatment.

Lastly, and with regards to the timings of transfer listed in Article 13(1) and 29(2) of DRIII and the effect that an appeal may have on the transfer, the Court ruled that the two article relates to two different stages of the procedure. The lodging of an appeal against a transfer decision has no effect on the running of the period of 12 months following the irregular border crossing (Article 13(1) DRIII), whereas under Article 29(1) the period of 6 months to carry out the transfer does not start to run until a final decision on an appeal with suspensive effect has been reached, including when the national court requests a preliminary ruling from the CJEU, as long as that appeal has suspensory effect in accordance with Article 27(3) DR III.

Outcome:

On a proper construction of Article 27(1) of Regulation No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in the light of recital 19 of that regulation, an applicant for international protection is entitled, in an appeal against a decision to transfer him, to plead incorrect application of the criterion for determining responsibility relating to the irregular crossing of the border of a Member State, laid down in Article 13(1) of that regulation.

On a proper construction of Article 13(1) of Regulation No 604/2013, a third-country national whose entry has been tolerated by the authorities of a first Member State faced with the arrival of an exceptionally large number of third-country nationals wishing to transit through that Member State in order to lodge an application for international protection in another Member State, without satisfying the entry conditions in principle required in that first Member State, must be regarded as having ‘irregularly crossed’ the border of that first Member State, within the meaning of that provision.

On a proper construction of Article 13(1), second sentence, of Regulation No 604/2013, read together with Article 7(2) of that regulation, the lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1).

On a proper construction of Article 29(1) and (2) of that regulation, the lodging of such an appeal means that the period laid down by those provisions does not start to run until the final decision on that appeal, including when the court hearing the appeal has decided to request a preliminary ruling from the Court of Justice, as long as that appeal had suspensory effect in accordance with Article 27(3) of that regulation.

Observations/Comments:

The judgment stands in contrast with Advocate General Sharpston’s opinion who argued that the asylum applications in question in the main proceedings should be examined by the first Member State in which the applications were lodged on grounds that that the term “irregular crossing” does not cover the situation in the main proceedings, since Member States not only tolerated the mass border crossing but actively facilitated it.

Case Law Cited:

CJEU - C-646/16, Khadija Jafari and Zainab Jafari

Case C-578/16 - CK and Others v Slovenia

CJEU - C-19/08 Migrationsverket v Edgar Petrosian and Others (UP)

Attachment(s):

application/vnd.openxmlformats-officedocument.wordprocessingml.document

C 490_16 AS v Slovenia.docx

Authentic Language:

Slovene

Country of preliminary reference:

Slovenia

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

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