CJEU, 23 January 2019, M.A., S.A. and A.Z., C-661/17

Brexit – Article 50 TEU – Discretionary clause – Article 17(1) Dublin III Regulation – Best interests of the child  – Family unity.

In M.A., S.A. and A.Z., the CJEU deals with a case involving Brexit and the Dublin III Regulation, the discretionary clause set out in its Article 17(1) and the principle of the best interests of the child. The Court clarifies that, despite the planned withdrawal of the UK from the EU, the provisions of EU Law concerning the responsibilities for the examination of asylum applications remain fully applicable in that Member State. Indeed, the notification of the intention to withdraw from the EU, pursuant to Article 50 TEU, does not impact on the application of the Dublin III Regulation, as long as the Member State concerned has not actually left the EU. The CJEU further explains that a Member State is not obliged to use the discretionary clause set out in Article 17(1) of the Dublin III Regulation where the Member State responsible for examining an asylum application has notified its intention to withdraw from the EU. Similarly, considerations relating to the best interests of the child cannot oblige the Member State to make use of the discretionary clause, whose exercise, ultimately, remains fully optional and only subject to the State’s “absolute discretion”.

Francesco Luigi Gatta

A. Facts and Ruling

1. Principal facts and questions referred for a preliminary ruling

The case concerns two third-country nationals, S.A. and M.A., and their child, A.Z. In 2010 S.A. entered the UK on a student visa; a year later M.A. joined her after obtaining a dependent visa. Their child A.Z. was born in the UK in 2014. The parents renewed their visas every year until the college in which S.A. was studying closed down, which led to the expiry of their visas.

The family then moved to Ireland where, in 2016, applied for asylum, after having been residents in the UK for 6 years. The Irish Refugee Applications Commissioner sent a request to the UK – which accepted – to take charge of the asylum applications in accordance with the Dublin III Regulation.

S.A. and M.A. unsuccessfully challenged their return to the UK by raising issues regarding medical and health problems affecting their child. The parents then appealed the transfer decision before the International Protection Appeals Tribunal invoking, inter alia, grounds relating to the UK’s future withdrawal from the EU in light of the “Brexit” process.

The case eventually reached the Irish High Court, which, in order to resolve the dispute before it, decided to ask the Court of Justice of the EU (CJEU) to clarify a number of interpretative issues linked to the Brexit process and its implications for the Common European Asylum System (CEAS). The Irish referring court also asked guidance as regards the discretionary clause set out in Article 17(1) of the Dublin III Regulation, the best interests of the child and the right to an effective remedy.

2. Questions concerning Brexit: Admissibility

In its judgment, the CJEU first dispels the question of admissibility raised by the Irish government with regard to a preliminary ruling concerning Brexit. According to Ireland, since the Brexit situation is not clear at this stage and the precise legal consequences of the possible withdrawal of the UK from the EU are not known yet, all the questions surrounding Brexit must be regarded as merely hypothetical. Now, according to its well-established case-law, the Court does not deal with questions which are hypothetical or which seek an advisory opinion. Consequently, the questions here referred for preliminary ruling must be considered as inadmissible, the Irish government concludes.

The Court rejects such argumentation, noting that it is solely for the national referring courts to determine, in light of all the relevant circumstances of the case and in order to be able to deliver their judgment, both the need for a preliminary ruling and the relevance of the questions to be referred.  Questions on the interpretation of EU law enjoy a presumption of relevance and the CJEU, in principle, is bound to give a ruling, being entitled to refuse to rule on a question referred by a national court only in cases of an evident lack of relation to actual facts or where the problem raised is obviously hypothetical (Eurosaneamientos and Others, 2016).

In the case at hand, the CJEU is satisfied with the explanations provided by the referring court as regards the need to analyse the consequences of the withdrawal of the UK from the EU in relation to the Dublin III Regulation. The interpretation requested is not irrelevant, therefore, the questions referred are admissible.

3. Brexit and its implications for the Dublin System

The CJEU addresses the first question concerning the Brexit implications for the functioning of the Dublin System. The referring court asks, in particular, whether the fact that the Member State designated as “responsible” in accordance with the Dublin III Regulation has triggered the withdrawal procedure under Article 50 TEU (here, UK), obliges the determining Member State (here, Ireland) to itself examine the asylum application at issue, to that end making use of the discretionary clause set out in Article 17(1) of that regulation.

The Court answers negatively, clarifying that a Member State’s notification of its intention to withdraw from the EU pursuant to Article 50 TEU does not have the effect of suspending the application of EU law, which continues in full force and effect in that Member State until the time of its actual withdrawal. Consequently, there is no obligation for the other Member State concerned to use the discretionary clause set out in Article 17(1) of the Dublin III Regulation and examine the asylum application.

Such provision, indeed, entails an optional character and its exercise is not subject to any particular condition or obligation, including the planned exit from the EU of a Member State designated as responsible for asylum purposes.

The referring Irish court also asks whether, according to the Dublin III Regulation, the decision relating to the determination of the State responsible for examining an asylum application and the one concerning the exercise of the discretionary clause under Article 17(1) must be taken by the same national authority. The CJEU observes that there are no provisions in the Dublin III Regulation specifying which national authority shall perform specific tasks and exercise specific powers with regard to its application. What the regulation does provide, under Article 35(1), is that Member States have to notify and inform the Commission about the national authorities responsible for fulfilling the obligations arising from it, but there is no restriction as regards the organisation of the tasks and competences to be allocated to the domestic authorities. Therefore, a Member State is able to entrust to different authorities the task of identifying the Member State responsible and the power to take a decision concerning the exercise of the discretionary clause set out in Article 17(1).

4. The best interests of the child and the discretionary clause under Article 17(1) Dublin III Regulation

The referring court raises a number of questions relating to the exercise of the discretionary clause in relation to the best interests of the child. In particular, it is asked whether a Member State, which is not responsible for the examination of an asylum application, may be obliged, by considerations relating to the best interests of the child, to make use of the discretionary clause set out in Article 17(1) and to itself examine that application.

The CJEU confirms that Article 17(1) provides for the exercise of an option, a discretionary power, which a Member State may sovereignly decide to use in light of the circumstances of the case. Thus, not even considerations regarding the best interests of the child can oblige Member States to use such discretionary clause.

The referring court also asks whether, under the Dublin III Regulation, a specific remedy shall be made available against the decision not to use the discretionary clause set out in Article 17(1). The Court answers negatively, on the basis of three considerations.

First, although under Article 27(1) of the Dublin III Regulation an applicant for international protection has the right to an effective remedy against a transfer decision, such provision does not expressly provide for a specific and additional appeal against the decision to not use the option set out in Article 17(1). Second, the Court observes that the Member State’s decision not to use the discretionary clause under Article 17(1) necessarily implies that it must adopt a transfer decision, which may be challenged by the applicant: that is the time and the context in which the refusal to use the discretionary clause may be contested, without the need of an additional ad hoc remedy. Third, for the Court, in general terms, the overall objective of the Dublin III Regulation of ensuring the rapid processing of applications discourages the availability of multiple remedies.

Finally, the referring court raises a question about the examination of the situations of the child and the parents in the framework of the asylum procedures. The Court states that, in the absence of evidence to the contrary, the Dublin III Regulation establishes a presumption that it is in the best interests of the child to treat his/her situation as indissociable from that of his/her parents. Such conclusion, indeed, is consistent with the principles of respect for family life and the need to preserve the unity of the family.

B. Discussion

1. Brexit and the ”absolute discretion” of Member States as regards Article 17(1) of the Dublin III Regulation

EU law still applies to the UK until Brexit actually happens. This finding is consistent with what the CJEU already affirmed in the other “Brexit case” concerning the surrender to the UK of a person subject to a European arrest warrant (RO, 2018): the mere notification of the intention to withdraw from the EU according to Article 50 TEU does not have the effect of suspending the application of EU law in the Member State that has given notice. Consequently, Article 50 TUE has no implications, as long as the withdrawal from the EU is not completed, for the application of EU law, whether in the field of police and judicial cooperation in criminal matters (transfer of a person subject to the European arrest warrant) or of the CEAS (transfer of an asylum seeker).

As for the discretionary clause set out in Article 17(1) of the Dublin III Regulation, the CJEU essentially confirms its previous case-law, reiterating its optional nature and the wide discretion enjoyed by Member States in that regard. The clause, indeed, leaves a Member State “absolute discretion” to decide, on the basis of political, humanitarian or practical considerations, whether to examine an application for international protection even if it is not responsible according to the Dublin criteria (Fathi, 2018).

This assumption is explained by the Court, firstly, by clarifying that the “discretionary clause” set out in Article 17(1) of the Dublin III Regulation essentially corresponds to the old “sovereignty clause” contained in Article 3(2) of the Dublin II Regulation. The terms of the two provisions, in essence, coincide, so that the interpretation of the “old clause” is transposable to the “new clause” (C.K. and Others, 2017).

Secondly, the CJEU states that it is clear from the wording of Article 17(1) that this provision has an optional character and its exercise is not subject to particular specific conditions (Halaf, 2013). Furthermore, the Court goes on to explain that the discretionary nature of the clause is consistent with its case-law relating, in general, to optional provisions, which confer “a wide discretionary power” to Member States (Abdullahi, 2013). Lastly, the discretionary power to exercise the clause is coherent with the objective of Article 17(1), as it allows Member States to sovereignly decide to examine an application for asylum and to maintain their prerogatives in the exercise of the right to grant international protection (X, 2018; Abdullahi).

2. The best interests of the child and the unity of the family

Member States, ultimately, remain free to decide if and how to activate the clause set out in Article 17(1). Considerations about the best interests of the child do not affect the “absolute discretion” enjoyed by Member States either. In this regard, the UNHCR has repeatedly called on EU Member States for a proactive use of the discretionary clauses of the Dublin III Regulation, considering, in particular, the one set out in Article 17(1) as a “vital safeguard” on account of its flexibility to respond to different situations, including, especially, those involving the unity of the family and the best interests of the child. Despite its potential, however, the discretionary clause under Article 17(1) has only received a limited application so far, the UNHCR observes.

The CJEU does not encourage a change in this trend, as it laconically affirms that Member States enjoy full discretion as regards the exercise of such clause, and not even considerations relating to the best interests of the child can oblige them to use it. While it is true that the Court lends great weight to the principle of the best interests of the child (AS, 2018) – which, moreover, is established in EU primary and secondary law (Article 24 of the Charter of fundamental rights of the EU; Article 6 of the Dublin III Regulation) –, such principle is not sufficient to affect the “absolute discretion” enjoyed by Member States and their power to exercise the discretionary clause under Article 17(1), so that, ultimately, the sovereign prerogatives of Member States prevail here.

The Court shows a more sensible approach when dealing with the question of the examination of the child’s situation in relation to that of the parents, as it establishes a presumption that, unless proven otherwise, the principle of the best interests of the child calls for the respect for family life and, more specifically, the preservation of the unity of the family group.

This finding is consistent with the recommendations stemming from the UNHCR and the European Asylum Support Office (EASO) on how to deal with the principle of the best interests of the child in asylum procedures. In particular, EASO highlights that it is of primary importance to assess the presence of potential conflicting interests between the child and the parents and, if it is the case, to conduct separate examinations and take different decisions regarding their applications for international protection.

The CJEU’s judgment is coherent in so far as it establishes a presumption that is rebuttable, as in circumstances which display that a joint treatment is in contrast with the principle of the best interests of the child, the child’s situation shall be examined and treated separately from the one of the parents. The problem is, as the UNHCR points out, that such assessments are often carried out superficially, so that the best interests of the child is a principle that sometimes has a value only in theory, but not in practice.

C. Suggested reading

To read the case : CJEU, 23 January 2019, M.A, S.A. and A.Z, C-661/17, EU:C:2019:53

Case law :

- CJEU, 19 September 2018, RO, C-327/18 PPU, EU:C:2018:733

- CJEU, 16 February 2017, C.K. and others, C-578/16 PPU, EU:C:2017:127

- CJEU, 4 October 2018, Fathi, C-56/17, EU:C:2018:803

Doctrine :

Flamand, C., « La minorité « prolongée » du MENA reconnu réfugié pour favoriser le regroupement familial », Cahiers de l’EDEM, mai 2018

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

Morgades-Gil, S., “The Discretion of States in the Dublin III System for Determining Responsibility for Examining Applications for Asylum: What Remains of the Sovereignty and Humanitarian Clauses After the Interpretations of the ECtHR and the CJEU?”, International Journal of Refugee Law, 2015, Vol. 27, No 3, pp. 433-456

Other materials :

European Parliament, The future relationship between the UK and the EU in the field of international protection following the UK’s withdrawal from the EU, Study requested by the LIBE committee, 2018

European Asylum Support Office (Easo), Practical guide on the best interests of the child in asylum procedures, EASO Practical Guide Series, 2019

UNHCR, Left in limbo, UNHCR study on the implementation of the Dublin III Regulation, UNHCR, August 2017

To cite this contribution:  F.L. Gatta, “Brexit and Dublin: the Court of Justice clarifies the implications for the Dublin System of the process of withdrawal from the EU of the United Kingdom”, Cahiers de l’EDEM, March 2019.

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