CJEU to hear case in Abdullahi re Dublin Regulation next Tuesday 07/05/2013

Friday, October 4, 2013

-7 May 2013: case C-394/12 Shamso Abdullahi

Next Tuesday, the CJEU will be holding a hearing concerning the case of Abdullahi, a preliminary reference lodged by the Austrian Asylum Court (Asylgerichtshof) in August 2012 concerning the Dublin Regulation. The questions referred are the following:

Is Article 19 in conjunction with Article 18 of Regulation (EC) No 343/2003 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) of Regulation No 343/2003, or does European law oblige the national reviewing authority where, in the course of an appeal or review procedure in accordance with Article 19(2) of Regulation (EC) No 343/2003, irrespective of that agreement, it comes to the view that another State is the Member State responsible pursuant to Chapter III of Regulation (EC) No 343/2003 (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?

Is Article 10(1) of Regulation (EC) No 343/2003 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.

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., 30696/09, is it necessary to come to a different assessment of the Member State with primary responsibility within the meaning of Regulation (EC) No 343/2003, 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 Member State cannot from the outset constitute an event establishing responsibility within the meaning of Article 10 of Regulation (EC) No 343/2003?

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Inhuman or degrading treatment or punishment
Responsibility for examining application