CJEU - Joined Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17 Ibrahim, 19 March 2019

The CJEU divided the decision according to the questions made by the German authorities. 

First, the referring court sought to ascertain on how to interpret Article 52 of the Asylum Procedures Directive. Concerning Case C‑438/17, that court sought, further, to ascertain whether the position was the same where an asylum application was lodged before the entry into force of the Asylum Procedures Directive and where that application still falls, per Article 49 of the Dublin III Regulation, fully within the scope of the Dublin II Regulation.

The Court ruled that the answer to this first question is that the first paragraph of Article 52 of the Procedures Directive must be interpreted as such. However, the first paragraph of Article 52 of that directive precludes such an immediate application in the second situation, which still fall fully within the scope of the Dublin II Regulation.

Secondly, the referring court sought to ascertain whether Article 33 of the Procedures Directive should be interpreted as meaning that it is not a condition for Member States to be able to reject an application for asylum as being inadmissible under Article 33(2)(a) of the directive that they must first have resorted to the take charge or take back procedures provided for by the Dublin II or Dublin III Regulations. The Court answered to that question stating that, in a situation such as that at issue in those cases, Article 33 of the Procedures Directive must be interpreted as meaning that it is not a condition.

In addition, the referring court sought to ascertain how to interpret Article 33(2)(a) of the Procedures Directive. The Court ruled that Article 33(2)(a) of the Procedures Directive must be interpreted as meaning that it does not preclude a Member State from exercising the option granted by that provision to reject an application for the grant of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State. The fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance as they receive is markedly inferior, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty.

Finally, the referring court also sought to ascertain whether Article 33(2)(a) of the Procedures Directive should be interpreted as precluding a Member State from exercising that option where the asylum procedure in the other Member State was and continues to be vitiated by systemic flaws.

The Court ruled that Article 33(2)(a) of the Procedures Directive must be interpreted as not precluding a Member State from exercising that option, where the asylum procedure in the other Member State that has granted subsidiary protection to the applicant leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of the Qualification Directive.