CJEU: Judgment C-63/15 Ghezelbash and C- 155/15 Karim

On Tuesday 7 June 2016, the CJEU delivered its judgments  in Ghezelbash and Karim . These cases relate to the scope of the right to an effective remedy in recital 19 and Article 27(1) of the Dublin III Regulation.

C-63/15 Ghezelbash

Mr Ghezelbash, an Iranian national, had his asylum claim in the Netherlands rejected following the acceptance of a ‘take back’ request by France pursuant to Article 12(4) DRIII. After being informed of this, the applicant submitted circumstantial evidence in support of his claims that he had returned to Iran from France for over three months, and argued that the Netherlands was responsible for his application, as this was where he had lodged his first asylum claim. The Rechtbank den Haag requested a ruling from the CJEU on whether the applicant had the right to an effective legal remedy to appeal against the application of the Chapter III criteria used to determine the responsible Member State (MS).

In line with the Opinion of Advocate General Sharpston, delivered on 17 March 2016, the Court decided that Article 4 of the Dublin III Regulation confers a right on the applicant to be informed of the criteria for determining the Member State responsible. The Court confirmed that the provision on an effective remedy in Article 27 of the Dublin III Regulation must be interpreted in a way that asylum seekers  are given the opportunity to request a court to suspend the implementation of the transfer decision pending the outcome of his or her appeal. The Court considered it apparent from recital 9 that the Dublin III Regulation is not solely meant to improve the effectiveness of the Dublin system, but also to improve the protection afforded to applicants under that system. The Court argues that the Dublin III Regulation decided to involve asylum seekers in the process by obliging Member States to inform them of the criteria for determining responsibility and provide them with an opportunity to submit information relevant to the correct interpretation of those, and by conferring on the asylum seekers a right to effective remedy in respect of any transfer decision. The Court dismissed the argument that enabling an appeal against the misapplication of Chapter III would create an increase in workload by upholding its decision from Petrosian by stating that EU legislation did not intend that the judicial protection enjoyed by asylum seekers should be sacrificed for the benefit of  expediting asylum applications.

The Court thus concluded that Article 27(1) of the Dublin III Regulation should be interpreted as meaning that an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Dublin III Regulation. 

C- 155/15 Karim

Mr Karim is a Syrian national who had his asylum claim in Sweden rejected after Slovenia accepted a ‘take back’ request pursuant to Article 13 of the Dublin III Regulation. Slovenia confirmed its willingness to process the asylum claim after being informed of additional information which indicated that Mr Karim had left the territory of the Member States for over three months, in circumstances covered by Article 19(2) of the Dublin III Regulation. The applicant appealed against the transfer decision, and the Stockholm Administrative Court of Appeal requested a preliminary ruling on the 1^st of April 2015.

The Court acknowledged the fact that after the submissions of new documents indicating that Mr. Karim had left the territory for over three months, a new procedure for determining the responsible Member State had started. The Court then referred to paragraphs 30-61 of the Ghezelbash judgment and reiterated that Article 27(1), read in the light of recital 19, provides an asylum seeker with an effective remedy against a transfer decision made in respect of him, which may concern the examination of the application of that Regulation. Again, the Court’s decision is in line with Advocate General Sharpston’s opinion. It is noteworthy to highlight that the Court clarifies that the right to an effective remedy is not limited to systemic deficiencies in the asylum procedure or reception conditions which provide grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, thereby  moving away from its interpretation in Abdullahi concerning the Dublin II Regulation.

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