CJEU decision in C-394/12 Abdullahi, 10 December 2013

Sunday, December 15, 2013

(Request for a preliminary ruling – Common European Asylum System – Regulation (EC) No 343/2003 – Determination of the Member State responsible for examining an asylum application – Review of compliance with the criteria for determining responsibility for examining the asylum application – Scope of judicial review)

Facts of the case

The case concerns a Somali national, Ms Abdullahi, who entered Greece irregularly by boat via Syria and Turkey in summer 2011. Without having lodged an asylum application in Greece, she travelled to Austria via the Former Yugoslav Republic of Macedonia, Serbia and Hungary. On arrest by Austrian police officials, she claimed asylum. The Austrian authorities requested Hungary to take charge of her under the Dublin II Regulation, and Hungary accepted. 

She appealed the transfer decision on the basis that Greece was in fact the Member State responsible according to the criteria of the Dublin II Regulation, due to it being the State where the first irregular entry took place. Her argument was that due to deficiencies in the Greek asylum system, Austria should take charge of her application. A dispute therefore arose as to whether Greece or Hungary was responsible for examining the asylum claim in light of Article 10(1) of the Dublin II Regulation. The Austrian Asylgerichtshof asked the CJEU to clarify the procedure for determining responsibility.

Questions referred for a preliminary ruling

1. Is Article 19 in conjunction with Article 18 of [the Dublin II Regulation] to be interpreted as meaning that, following the agreement of a Member State in accordance with those provisions, that Member State is the State responsible for examining the asylum application within the meaning of the introductory part of Article 16(1) … or does European law oblige the national review authority where, in the course of an appeal or review procedure in accordance with Article 19(2) … irrespective of that agreement, it comes to the view that another State is the Member State responsible pursuant to Chapter III … (even where that State has not been requested to take charge or has not given its agreement), to determine that the other Member State is responsible for the purposes of its appeal or review procedure? In that regard, does every asylum seeker have an individual right to have his application for asylum examined by a particular Member State responsible in accordance with those responsibility criteria?

2. Is Article 10(1) of [the Dublin II Regulation] to be interpreted as meaning that the Member State in which a first irregular entry takes place ('first Member State') must accept its responsibility for examining the asylum application of a third-country national if the following situation materialises:

A third-country national travels from a third country, entering the first Member State irregularly. He does not claim asylum there. He then departs for a third country. After less than three months, he travels from a third country to another EU Member State ('second Member State'), which he enters irregularly. From that second Member State, he continues immediately and directly to a third Member State, where he lodges his first asylum claim. At this point, less than 12 months have elapsed since his irregular entry into the first Member State.

3. Irrespective of the answer to Question 2, if the 'first Member State' referred to therein is a Member State whose asylum system displays systemic deficiencies equivalent to those described in the judgment of the European Court of Human Rights of 21 January 2011, M.S.S., 30.696/09, is it necessary to come to a different assessment of the Member State with primary responsibility within the meaning of [the Dublin II Regulation], notwithstanding the judgment of the European Court of Justice of 21 December 2011 in Joined Cases C-411/10 and C-493/10 [NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner]? In particular, can it be assumed that a stay in such a Member State cannot from the outset constitute an event establishing responsibility within the meaning of Article 10 …?

Consideration of the questions referred

The Court held that once a Member State takes charge of an application on the basis of Article 10(1) of the Dublin II Regulation - as the Member State into which the Applicant ‘irregularly crossed by land, sea or air having come from a third country’ - this decision can only be overturned if there are systemic deficiencies in the asylum procedure and reception conditions of that Member State. These systemic deficiencies must provide substantial grounds for believing that the Applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the EU.

The CJEU’s decision is aimed at securing ‘the objective of the rapid processing of asylum applications’ by establishing ‘a clear and workable method’ [para 59] for determining responsibility to examine the asylum claim. Furthermore, the court emphasises that the Dublin system is a set of ‘organisational rules governing the relations between the Member States’ [para 56], guided by ‘the principle of mutual confidence’ [para 53].

The effect of this judgment will be limited by the Dublin III Regulation, which will supersede Dublin II and apply to transfer requests issued from 1 January 2014 onwards. The new right to an effective remedy in Article 27 will better enable asylum seekers to challenge the legal and factual premises to a transfer decision.

Read the EDAL case summary and the full judgment of the Court of Justice of the European Union.

A journal article entitled ‘The Dublin system and the Right to an Effective Remedy – The case of C-394/12 Abdullahi’ by Maria Hennessy, Senior Legal Officer at ECRE, is available in the Journal section.

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

Responsibility for examining application