CJEU - C-620/10 Migrationsverket v Nurije Kastrati, Valdrina Kastrati, Valdrin Kastrati

This case concerned a family, whereby Mrs. Kastrati and her minor children were from Kosovo and Mr. Kastrati lived in Sweden. In 2007 Mrs Kastrati lodged an application for permits to reside in Sweden on the basis of her husband. The Migrationsverket dismissed the application which was upheld by the Skane Regional Administrative Court. Mrs Kastrati then lodged an appeal to the Stockholm Administrative Court of appeal before withdrawing it. Mrs Kastrati in the meantime had been granted a French visa and on that basis entered Sweden with her children. She then submitted an asylum application in Sweden but as she had been granted a visa by France, the Swiss authorities requested France to take responsibility on the basis of Article 9(2) of the Dublin Regulation. Mrs Kastrati then submitted a new application for permits to reside in Sweden on the basis of her husband and subsequently withdrew her asylum claim in Sweden. However, the French authorities were unaware of that and accepted to take back the wife and children. The Migrationsverket once again refused them residence permits and rejected their asylum applications on the basis of the transfer to France. There was further litigation at the national level until the Stockholm Administrative Court of Appeal submitted the following reference to the CJEU:

(1)      In the light of, inter alia, the stipulations of Article 5(2) of Regulation No 343/2003 and/or the absence of provisions in the regulation on the cessation of a Member State’s responsibility to examine an asylum application other than those contained in the second subparagraph of Article 4(5) and Article 16(3) and (4), is Regulation No 343/2003 to be interpreted as meaning that the withdrawal of an asylum application does not affect the possibility of applying the regulation?

(2)      Is the stage in the process at which the asylum application is withdrawn relevant in answering the question set out above?