Dublin transfers and the right to an effective remedy: between efficiency and the protection of fundamental rights.
With its judgment in the Shiri case, the Court of Justice of the EU rules that, when a Dublin transfer does not take place within the six-month time limit prescribed in the Dublin III Regulation, responsibility for examining the application for international protection is automatically shifted to the Member State that requested the Dublin transfer. Moreover, the Court extends the scope of the right to an effective remedy provided in the Dublin III Regulation, specifying that an applicant for international protection can challenge a Dublin transfer before a national court by invoking the expiry of the prescribed six-month time limit.
Dublin transfers - Right to an effective remedy - Article 47 EU Charter - Dublin III Regulation– Time-limit for implementing a transfer decision.
With its judgment delivered on 25 October 2017, the Court of Justice of the European Union (“CJEU”) clarified significant aspects regarding the scope of the right to an effective remedy in relation to intra-EU transfers of asylum seekers and the allocation of responsibility for the examination of their applications for international protection under the Dublin III Regulation (“DRIII”).
On the one hand, the CJEU ruled that where a decision of a Dublin transfer is not implemented within the six-month time limit laid down in the DRIII, responsibility for examining the application for international protection is automatically shifted to the Member State that requested the transfer. From a pragmatic and efficiency-oriented point of view, this ensures that the processing of applications for international protection are carried out rapidly and - if the six-month period has expired - directly in the Member State where the applicant is, so as not to produce further delays.
On the other hand, and in a logic of protection of fundamental rights, the Court ruled that the Member State’s failure to comply with the six-month provided in the DRIII for implementing the transfer decision shall be subjected to judicial scrutiny, so that an applicant for international protection can challenge a Dublin transfer before a national court invoking the expiry of the time limit.
2. Facts, procedure and questions referred to the CJEU
Mr. Shiri, an Iranian national, entered the territory of the European Union in Bulgaria, where he applied for international protection in February 2015. In March he went to Austria, where he applied again for international protection. Later on, the same month, the Austrian and Bulgarian authorities initiated the procedure for Mr. Shiri’s transfer, according to Article 18 of DRIII; Austria requested his transfer and Bulgaria agreed to take him back.
In July the Austrian Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl) rejected Mr. Shiri’s application for international protection and confirmed his removal to Bulgaria pursuant to DRIII. Following Mr. Shiri’s appeal, in September the Austrian Federal Office confirmed its previous decision, rejecting again his application for international protection and ordering his transfer to Bulgaria, the Member State considered to be responsible for examining his application.
Mr. Shiri appealed against this decision to the Federal Administrative Court (Bundesverwaltungsgericht), claiming that the responsibility for examining his application for international protection had moved from Bulgaria to Austria, given the expiry of the six-month time limit laid down in Article 29(1) DRIII for the implementation of a transfer decision between Member States. Mr. Shiri’s appeal was dismissed.
He consequently challenged the decision before the Supreme Administrative Court (Verwaltungsgerichtshof) which, through a request for preliminary ruling, asked the CJEU whether the right to an effective remedy under Article 27(1) DRIII entitles an applicant for international protection to challenge a transfer decision claiming that the responsibility for examining his application has been transferred from a Member State to another due to the expiry of the six-month time limit (first question); and whether such transfer of responsibility under Article 29(2) DRIII follows automatically from the expiry of that deadline or if there are additional procedural conditions to be satisfied by the Member States (second question).
3. The opinion of the Advocate General
In its opinion, AG Sharpston focused on the scope of the right to an effective remedy against a transfer decision, considering and interpreting it in accordance with the overall objectives of the DRIII: ensuring a rapid processing of applications for international protection on the one hand, and, on the other hand and at the same time, safeguarding applicants’ rights during the process.
In this sense, according to the AG, DRIII certainly covers procedural matters which, however, besides governing the various steps of the procedure, also “have substantive implications for both the applicants and the Member States” in terms of specific rights and obligations. According to this logic, the six-month time limit laid down in Article 29 DRIII has not only a merely procedural character but it serves also as a specific safeguard for the applicants, providing a degree of certainty and avoiding that they are left “in orbit”, in a prolonged situation of uncertainty where no Member State takes responsibility for examining their application for international protection.
Therefore, with regard to the first question concerning the scope of the remedy under Article 27(1) DRIII, AG Sharpston is of the opinion that an applicant must be able to challenge a Dublin transfer not carried out within the prescribed six-month period, being entitled, for this purpose, to invoke this argument before a national court. This conclusion is reached taking in consideration the aims of DRIII and, also and especially, Articles 41 and 47 of the Charter of Fundamental Rights of the EU (rights to good administration and to an effective remedy), which are “particularly relevant” for the correct interpretation of the DRIII.
Austria, Czech Republic and Switzerland – which intervened in the case by submitting written observations – also shared this position, while the European Commission and the United Kingdom sustained the contrary, so that, in their view, Article 27(1) DRIII does not entail an effective remedy against a transfer decision on the ground that it has not been implemented within the prescribed six-month time limit.
Regarding the second question, the AG – in line with all the intervened Member States except the UK - considered that, according to Article 29(2) DRIII, the responsibility for the examination of an application for international protection is automatically transferred from a Member State to another solely on the basis of the expiry of the six-month period. Any additional condition or procedural requirement, indeed, would further delay the examination of the application, being in this way contrary to the purposes of rapidity and efficiency of the DRIII.
4. Judgment and reasoning of the Court
The Court, first of all, highlights the aims of DRIII consisting in guaranteeing effective and rapid access to the procedures for international protection and ensuring at the same time the availability of legal safeguards and of effective remedies in accordance with Article 47 of the Charter.
With that in mind, the Court first focuses its attention on the second question referred for preliminary ruling, concerning the possible automatic character of the transfer of responsibility for examining an application for international protection from one Member State to another in case of the expiry of the six-month time limit prescribed for the implementation of a Dublin transfer. The CJEU, sharing the AG’s opinion, rules that the transfer of responsibility under Article 29(2) DRIII operates ipso facto as a direct and automatic consequence of the expiry of the six-month period, without the need of any particular reaction from the part of the Member States concerned.
The reasoning of such automatism lies, firstly, in the wording of Article 29(2) DRIII, which does not indicate to take further action after the expiry of the six-month period, nor provides for additional conditions or requirements for the responsibility to be transferred. Such interpretation, furthermore, appears to be fully consistent with the general purpose of DRIII of rapidly processing applications for international protection, so that, on the contrary, the introduction of an additional procedural step, after the expiry of the six-month deadline, would result in a further and unjustified delay.
With regard to the first question, concerning the scope of the right to an effective remedy laid down in Article 27(1) DRIII, the Court, in accordance with the AG’s opinion and confirming its previous ruling in the case Mengesteab, affirms that an applicant has the right to challenge a transfer decision by claiming that the six-month deadline prescribed for its implementation was breached. In the CJEU’s words, “in the interests both of the applicants for such protection and of the proper general functioning of the system … the applicant must have an effective and rapid remedy available which enables him to rely on the expiry of the six-month period ... that occurred after the transfer decision was adopted”.
It follows also that, when the six-month time limit expires, “the competent authorities of the requesting Member State cannot carry out the transfer … and are, on the contrary, required to take, on their own initiatives, the measures necessary to acknowledge the responsibility … and to initiate without delay the examination of the application for international protection”.
Through its recent case-law, the CJEU has progressively expanded the reasons upon which a Dublin transfer may be challenged by an applicant for international protection. Indeed, the principle established in the case Abdullahi, according to which an applicant for international protection may only contest a Dublin transfer on the ground of systemic deficiencies in the receiving Member State’s asylum or reception system, is now to be considered as out-dated.
Indeed, already with its judgment in the Ghezelbash case, the Court clarified that, under DRIII, the right to an effective remedy covers not only the examination of the situation in the Member State where the Dublin transfer has to be carried out, but also and in particular the proper and correct application of the Dublin rules themselves, which provide the discipline for determining the Member States’ responsibility and for the intra-EU transfers of asylum seekers In this sense, in Ghezelbash, the Grand Chamber recognised in particular the possibility for the applicants to challenge a Dublin transfer on the basis of the incorrect application by a Member State of the Dublin responsibility determination criteria.
Moreover, with its recent judgment in the Mengesteab case – which, indeed, is often recalled here in Shiri - the CJEU has extended the scope of the right to an effective remedy against a Dublin transfer also to the proper observance and application of the procedural rules and safeguards laid down in DRIII, including, therefore, the specific six-month deadline prescribed for the transfer decision to be implemented.
Following this trend and in coherence with its recent jurisprudence, the Grand Chamber bases its judgment in Shiri on two basic rationales of the Dublin discipline: efficiency and safeguard of asylum seekers’ rights. In this sense, pursuing the coexistence of these two logics, the CJEU, on the one hand, expands the grounds on which applicants for international protection can challenge transfer decisions and, on the other, reiterates that Member States have an obligation to carry out procedures for the assignment of responsibility in an efficient and prompt manner.
Francesco Luigi Gatta
C. Pour aller plus loin
Imamovic S.-Muir E., The Dublin III System: more derogations to the duty to transfer individual asylum seekers?, European Papers, Volume 2, 2017, No 2, European Forum, Insight of 9 September 2017, Pages 719-728
McDonough P., Linking Efficiency with Fundamental Rights in the Dublin System: the Case of Mengesteab, VerfassungsBlog, 14 August 2017
Neraudau E, L’étendue du contrôle du juge national sur la décision de transfert Dublin II réduite comme peau de chagrin ?, Newsletter EDEM, janvier 2014
Neraudau E., Recours effectif et transfert Dublin : une clarification essentielle de la CJUE quant à l’étendue du contrôle du juge national sur la conformité des transferts Dublin, Newsletter EDEM, juin 2016
Neraudau E., Les obligations de l’État requérant avant transfert Dublin d’un demandeur d’asile gravement malade (absence de défaillances systémiques): un écho à la jurisprudence de la Cour eur. D.H., Newsletter EDEM, février 2017
Pour citer cette note : F. GATTA, “Dublin transfers and the right to an effective remedy: between efficiency and the protection of fundamental rights”, Cahiers EDEM, November 2017.
 Regulation (EU) No 604/2013 of the European Parliament and of the Council, of 26 June 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
 Opinion of Advocate General Sharpston, delivered on 20 July 2017, Case C-201/16, Majid Shiri v. Bundesamt für Fremdenwesen und Asyl.
 Ibid., §41.
 Ibid., §37.
 Initially the European Commission, in its written observations, also adopted the view of Austria, Czech Republic and Switzerland; while later, in the hearing before the Court, changed its position, aligning with the one of the United Kingdom.
 Judgment Shiri, §30.
 Ibidem, §§31-34.
 CJEU, judgment of 26 July 2017, Case C-670/16, Mengesteab.
 Judgment Shiri, §44.
 Ibid., §43.
 CJEU, judgment of 10 December 2013, Case C-394/12, Abdullahi.
 CJEU, judgment of 7 June 2016, Case C-63/15, Ghezelbash.
 Ibidem, §§36-38. On this point see also Mengesteab, cit., §43. Similarly, in the case Karim the Grand Chamber acknowledged the possibility for an applicant to contest a Dublin transfer by invoking an infringement of the rules set out in DRIII, namely Article 19(2) (CJEU, judgment of 6 June 2016, Case C-155/15, Karim).
Photo : www.designingbuildings.co.uk/wiki/Buildings_of_the_EU