CJEU Judgment: Cases C-490/16 AS & C-646/16 Jafari, 26 July 2017

Wednesday, July 26, 2017

On 26 July 2017, the CJEU delivered its ruling in cases C-490/16 A.S and C-646/16 Jafari, regarding the functioning of the Dublin III Regulation in relation to the mass border crossings in the Western Balkans in 2015/2016. In brief, the Austrian and Slovenian courts sought clarification on whether facilitating mass border crossing during a situation of humanitarian crisis could be considered (1) the issuance of a “visa” or (2) “irregular crossing”, under the Dublin III Regulation.
First, the Court ruled that the definition of “visa” under DRIII could not be directly inferred from other acts of EU law (such as the Visa Code), but had to be construed on the basis of the definition under Article 2(m) of DRIII and the Regulation’s general scheme. In that sense, the CJEU understood that a visa refers to an act formally adopted by a national authority (rather than mere tolerance of entry) and could not be confused with the grant of admission to the territory. This understanding is not altered by a situation characterised by the arrival of an unusually large number of asylum seekers. It must also be distinguished from the power to authorise entry on humanitarian grounds (Article 5(4)(c) of the Schengen Borders Code) and from the capacity to issue humanitarian visas with limited territorial validity (Article 25(1)(a) of the Visa Code). Therefore, the Court understood that tolerating the entry and transit of third country nationals in situations of exceptional number of arrivals is not tantamount to the issuance of a “visa” under DRIII.
Second, the CJEU recalled that the concept of “irregular crossing” is not defined in the DRIII nor in any other EU act, thus it must be determined taking into account the context and overall goals of DRIII. The crossing of a border without fulfilling the conditions imposed by the legislation applicable in the Member State in question, must be generally considered “irregular” and the rules laid down by the Schengen Borders Code (SBC) apply. While the SBC allows for a derogation of the entry conditions on humanitarian grounds, such authorisation is valid only in the territory of the Member State concerned, not the territory “of Member States” as a whole. Consequently, such provision does not regularise the crossing of a border for the sole purpose of enabling the transit of that national to another Member State in order to lodge an asylum application. Finally, in circumstances such as those in the case in question, third-country nationals must be regarded as having “irregular crossed” irrespective of whether that crossing was tolerated or authorised. The arrival of an unusually large number of third-country nationals does not affect that interpretation and thus Croatia was deemed responsible for the claims under Article 13(1) of the DR III.
More specifically in Jafari, the Court reiterated that, under Article 4 CFR and Article 3(2) DRIII, an applicant for international protection must not be transferred to the MS responsible if there is a genuine risk that he/she may suffer inhuman or degrading treatment. In A.S., the CJEU reaffirmed its understanding in Ghezelbash that the effective remedy under DRIII covers both the examination of the application of the Regulation (e.g. the criteria) and the examination of the legal and factual situation in the MS to which the applicant will be transferred. It also ruled that the lodging of an appeal against a transfer decision has no effect on the running of the period of 12 months following the irregular border crossing (Article 13(1) DRIII), but that the period of 6 months to carry out the transfer does not start to run until a final decision on an appeal with suspensive effect has been reached, including when the national court requests a preliminary ruling from the CJEU.


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.



Dublin Transfer