CJEU - Case C-360/16, Hasan

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Country of Applicant: 
Syria
Date of Decision: 
25-01-2018
Citation: 
Case C-360/16
Court Name: 
Court of Justice of the European Union (Third Chamber)
Headnote: 

The carrying out of a transfer does not, in itself, definitively establish the responsibility of the Member State to which the person concerned has been transferred.

A Member State, to which an applicant has returned after being transferred, is not allowed to transfer that person anew to the requested Member State without respecting a take back procedure. In those circumstances, a take back request must be submitted within the periods prescribed in Article 24(2) of the Dublin III Regulation, which begins to run from the time the requesting Member State becomes aware of the presence of the person concerned on its territory.

Facts: 

The main proceeding concern Mr Hasan, a Syrian national who made an asylum application in Germany in October 2014. The German authorities requested Italy to take the applicant back under the procedures established by the Dublin III Regulation (DRIII) since the applicant had previously applied for asylum in Italy. Mr Hasan challenged the transfer decision before the Administrative Court of Trier, Germany, which rejected his application for suspensive effect and later dismissed the action. Mr Hasan was transferred to Italy in August 2015, but returned to Germany later that month.

Mr Hasan appealed against the Administrative Court’s decision before the Higher Administrative Court of Rhineland-Palatine, which ruled that the applicant’s transfer to Italy had taken place after the six-month time limit laid down in the Dublin III Regulation had expired, with the result that Germany was responsible for examining his application. The government brought an appeal on a point of law against this decision before the Federal Administrative Court of Germany. In its turn, the Federal Administrative Court sought the CJEU’s guidance on the applicability of the Dublin provisions where an applicant returns to a requesting Member State after being sent back to the responsible Member State.

Five questions were submitted to the CJEU for a preliminary ruling.

Decision & Reasoning: 

First, the CJEU ruled that Article 27(1) of the Dublin III Regulation does not preclude a legislative provision that may lead the court or tribunal hearing an action brought against a transfer decision to take into account circumstances that are subsequent not only to the adoption of that decision but also to the transfer of the person concerned. The Court recalled its jurisprudence in Mengesteab and Shiri that, in order to ensure compliance with international law, an effective remedy in respect of Dublin transfers must cover the examination of the application of the regulation and the examination of the legal and factual situation in the Member State to which the applicant is to be transferred. The carrying out of a transfer does not, in itself, definitively establish the responsibility of the Member State to which the person concerned has been transferred. If that was not the case, since the introduction of an appeal does not necessarily entail suspension of the transfer decision and a person can be transferred before the legality of that decision has been assessed by a court or tribunal, the effective remedy provided under the Dublin III Regulation would be largely redundant.

Secondly, the CJEU found that a Member State to which an applicant has returned after being transferred is not allowed to transfer that person anew to the requested Member State without respecting a take back procedure. Thus, an applicant cannot be transferred to another Member State on the basis of a transfer decision previously adopted in his regard. On the contrary, a further transfer cannot be envisaged unless the situation of that person has been re-examined for the purpose of verifying that responsibility has not been transferred to another Member State following that person’s first transfer. According to the Court, this would not jeopardise the objective of the rapid processing of applications for international protection, since this re-examination would merely entail taking account of the changes that have occurred since the first transfer decision was adopted.

Thirdly, the CJEU found that, in those circumstances, a take back request must be submitted within the periods prescribed in Article 24(2) of the Dublin III Regulation, which begins to run from the time the requesting Member State becomes aware of the presence of the person concerned on its territory. If a take back request is not made within this period, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection. Thus, the CJEU reiterated its understanding in Mengesteab.

Fourthly, the Court concluded that a pending appeal procedure brought against a decision that rejected a first application for international protection must not be considered as equivalent to the lodging of a new application.

Finally, in case the person concerned does not lodge a new asylum application, it remains open to the Member State on whose territory that person is staying to initiate, should it so wish, a take back procedure. However, that person cannot be transferred to another Member State without such a request being made.

Outcome: 

1. Article 27(1) of Regulation (EU) 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 the regulation and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is that obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter.

2. Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third-country national and it is not possible to transfer that person anew to Member State ‘A’ without such a procedure being followed.

3. Article 24(2) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and those periods may not begin to run until the requesting Member State has become aware that the person concerned has returned to its territory.

4. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge.

5. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is not to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision.

6. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection:

– the Member State on whose territory that person is staying without a residence document can still make a take back request, and

– that provision does not allow the person to be transferred to another Member State without such a request being made.

Observations/Comments: 

The ruling is largely in line with Advocate General Bot’s Opinion.

Case Law Cited: 

CJEU - C-311/10, Commission v. Poland

CJEU - C-36/17, Ahmed

CJEU - C-201/16, Shiri

CJEU - C-670/16 - Mengesteab
Attachment(s): 
Authentic Language: 
English
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
Germany - Paragraph 77 of the Asylgesetz (German law on Asylum)