It’s not one of us! The Dublin System and associated countries: the Court of Justice clarifies the position of Norway.
Common European Asylum System – Dublin III Regulation – Inadmissibility of an asylum application – Subsequent application – Norway
In L.R., the Court of Justice deals with the involvement of Norway in the Dublin system. The key issue is whether an asylum application previously examined and rejected in a Dublin-associated country (like Norway) may be declared inadmissible as ‘subsequent application’ by an EU Member State. The Court rules that this is not possible: an asylum application cannot be dismissed on the ground that Norway has already rejected it, which means that EU Member States have to re-examine the application and process it ex novo. Although Norway applies the Dublin Regulation, it is not bound by the EU Asylum Directives and is not a member of the EU, nor cannot be treated in the same way as a Member State.
Francesco Luigi Gatta
A. Facts and Ruling
1. Main facts
The case concerns an Iranian national, L.R., who, in December 2014, lodged an asylum application in Germany. When examining the application, the competent German Office for Migration and Refugees found out that L.R. had previously applied for asylum in Norway. It thus requested the Norwegian authorities to take charge of the applicant, in accordance with the Dublin III Regulation (for the applicability of EU asylum law to Norway, see infra).
Norway replied, explaining to the German authorities that L.R. had applied for asylum back in 2008 and that his request had been rejected in June 2009. He had consequently been removed to Iran. In light of these circumstances, Norway refused to take charge of L.R. on the ground that its responsibility had ceased, in accordance with Article 19(3) of the Dublin III Regulation.
The German Office, therefore, finalised the examination of L.R.’s application for asylum and eventually, in March 2017, rejected it as inadmissible. According to the domestic law, the request was classified as a ‘second application’, with no room for conducting a new examination of the case. L.R. brought an action against that decision before the Administrative Court of the Land Schleswig-Holstein, which triggered the preliminary ruling mechanism in order to seek the CJEU’s guidance with regard to Norway’s participation in the Common European Asylum System (CEAS).
2. Preliminary question and judgment
The German referring court asks clarifications as to the ground of inadmissibility under Article 33(2)(d) of Directive 2013/32 (Asylum Procedures Directive), i.e., that of ‘subsequent application’.
According to the mentioned provision, a ‘subsequent application’ allows a Member State to consider an asylum application as inadmissible, where no new elements or findings in its support have arisen or have been presented by the applicant. The very notion of ‘subsequent’, in particular, inherently implies that the application had already been processed and decided elsewhere. A ‘subsequent application’, thus, entails a situation where a previous application, examined in the framework of a first procedure, has been addressed with a final decision.
But what if that first and final decision has been made by a third country (i.e. Norway) and not by a Member State? How shall a Member State handle an asylum application whose examination and decision have already taken place in a third country? In particular, shall the application be actually considered and treated as a ‘subsequent’ application (with the possibility to reject it) or, rather, as a new one (with a duty to examine it)?
The CJEU chooses the latter option and concludes that the asylum application lodged in Germany is not a ‘subsequent application’, because Norway is not a EU Member State. Therefore, an asylum seeker, whose application had been previously rejected in Norway, cannot be turned away by EU Member States by simply declaring the application inadmissible. The latter will have to be (re)examined and processed ex novo.
1. Oslo and Dublin
Unlike the other Scandinavian countries, Norway is not a member of the EU. It participates, inter alia, in the European Economic Area (EEA) and in the Schengen regime. As for the Dublin system, its involvement is only partial.
This goes back to the Dublin Convention, signed in 1990 and opened to accession to Member States of the European Community. While all the other Scandinavian countries became parties to the Convention (Denmark on 1 September 1997, Sweden on 1 October 1997, Finland on 1 January 1998), Norway, as non-member State, needed an ad hoc agreement to join the regime. In 2001, thus, together with Iceland, it concluded an agreement with the European Community to apply the provisions governing the criteria and the mechanisms for the management of asylum claims. The Dublin Convention was later replaced by the Dublin Regulation II, adopted in 2003.
Today, Norway shall apply the rules of the Dublin III Regulation in its mutual relations with the EU Member States, and vice versa. This includes, inter alia, the ‘taking back’ mechanism and the so-called Dublin transfers. On the contrary, Norway is not bound by other instruments of the CEAS, including Directive 2011/95 (Qualification Directive) and Directive 2013/12 (Asylum Procedures Directive), which are not covered by the said 2001 agreement with the EU.
Despite its hybrid, flexible status of Dublin-associated country, Norway is involved in the EU migration and asylum governance. Among other matters, it uses EURODAC, collects Dublin statistics, and interacts with the competent authorities of Member States and with the EU institutions and agencies. In particular, Norway has signed a working arrangement with the EU to participate in EASO's work and to receive support from the Agency, and it participates in the Management Board of Frontex, although retaining limited voting rights. Its peculiar position also allows Norway to take part in specific EU-led initiatives, which it did, for example, in the 2015 emergency relocation mechanism activated in favour of Italy and Greece or in the more recent ad hoc and EU-supported relocation scheme for vulnerable asylum seekers from Greece.
But are these forms of participation enough to consider Norway comparable to a Member State as far as the CEAS is concerned? Can the Norwegian asylum system, from both a substantive and procedural point of view, be regarded as tantamount to that provided for by EU Law?
The answer of the Court is negative.
2. Norway is not a Member State
The CJEU chooses a formalistic approach, opting for a strict, literal reading of the wording of the relevant EU law provisions. The conclusion is based on a combination of notions enshrined in Article 2 of Directive 2013/32 (‘definitions’), which establishes that :
- a ‘subsequent application’ is a ‘further application for international protection made after a final decision has been taken on a previous application’ (q);
- a ‘final decision’ is a ‘decision on whether the thirdcountry national or stateless person be granted refugee status or subsidiary protection status’ (e);
- an ‘application for international protection’ is ‘a request made… for protection from a Member State’ (b).
It follows from the wording of the Directive – which, for the Court, is ‘clear’ (§37) and ‘unequivocal’ (§47) – that asylum applications managed by third countries are excluded from the above definitions. A closer look to the specific Agreement between the EU and Norway confirms this, as it only refers to the implementation of certain provisions of the Dublin III Regulation, whereas there is no explicit reference to the Qualification and Procedures Directives.
As a consequence, an asylum application addressed to Norway is not an ‘application for international protection’ under EU law. Therefore, an application made to an EU Member State, which follows a previous application rejected by a third country – although Dublin-associated, as Norway – cannot be classified (and dismissed) as ‘subsequent application’.
3. Ok, but can’t we trust Norway ?
In its observations, the German Government tried to prompt a broader interpretation of the notion of ‘subsequent application’ in light of Norway’s associated status and involvement in the Dublin system. To sustain this, it invoked the principles of mutual trust and confidence, as well as the assumption that the Norwegian system provides an equivalent level of protection as that required from the EU Member States in terms of guarantees for asylum seekers.
The Advocate General (AG) Saugmandsgaard Øe backed Germany up, considering that the relevant EU asylum law does not preclude «Norway from being treated as a Member State» (Opinion, §101). It is true, he observes, that Norway is not bound to apply the Qualification and Asylum Procedures Directives, which govern two separate protection regimes, i.e. the status of refugee and that conferred by subsidiary protection. Such double level of protection, thus, is absent in Norway. However, the AG adds, Norwegian law provides for the refugee status be granted not only to persons within the conditions of the Geneva Convention, but also to those falling within situations of ‘a real danger’ (including death penalty, torture, inhuman or degrading treatment). This should be enough to consider that an asylum seeker in Norway enjoys a level of protection at least as high as that provided under the EU Directives.
The argument of the equivalent level of protection failed to persuade the CJEU. The judges – as well as the European Commission, which intervened in the case – considered that only final decisions on a previous asylum application taken by Member States are able to trigger the notion of ‘subsequent application’, thereby making the ground of inadmissibility under Article 33(2)(d) of the Procedure Directive applicable. Assuming that the Norwegian asylum system is as protective as that of the EU, would not lead to a different conclusion (§46). Such assertion preserves legal certainty and enables the Court to avoid taking an explicit position on the Norwegian system: contrary to the opinion of the Advocate General, the CJEU refrains from assessing it and does not state whether it could be actually considered equivalent to the CEAS or not.
4. Final remarks
In their interactions with EU Member States, from time to time, Dublin-associated countries have contributed to the development of the case-law relating to the Dublin System, giving European Courts the chance to clarify important aspects. For example, in Tarakhel v. Switzerland (for an analysis of the judgment see here) the ECtHR clarified States’ obligations in the framework of Dublin transfers, pointing out their duty to examine in concreto the individual risks of inhuman or degrading treatment for the asylum seeker concerned before implementing the removal measure.
The case L.R., involving Norway and Germany, offered the CJEU a good opportunity to clarify the Dublin rules, in particular by shedding light on the precise meaning of the concept of ‘subsequent application’. This notion is only apparently easy-to-understand: it implies, in essence, a first asylum application, which is the object of a final decision, and then a second – and indeed, ‘subsequent’ – application. Yet, a number of combinations are possible, which can make the concept rather complex. Let’s imagine the following cases:
- 1st application lodged (and then rejected) in a Dublin-associated third country (e.g. Norway), followed by a 2nd application lodged in a EU Member State X (e.g. Germany);
- 1st application lodged (and then rejected) in a EU Member State X (e.g. Germany), followed by a 2nd application lodged in:
B 1) the same EU Member State X (e.g. Germany) or
B 2) another EU Member State Y (e.g. France).
The Court tells us that the case under A) does not constitute a ‘subsequent application’, but it does not provide further clarifications of the concept, in light of the possible situations under B). While the Commission considered that the notion of ‘subsequent application’ may only apply to the situation under B1) – i.e. 1st and 2nd applications made to the same Member State –, the referring German court, the German government and the Advocate General argued that the concept covers also the case under B2), where the 2nd application is lodged in a Member State other than that which examined and decided on the previous application. According to the AG: «once a final negative decision has been taken on a previous application, any application made by the same applicant in any Member State whatsoever may be considered to be a ‘subsequent application’» (Opinion, §54). The Court chooses a cautious approach and does not engage in this ‘debate’. Since its only job, in this case, was to address and clarify the hypothesis involving a third country such as Norway, the other questions are left unanswered (§40). Yet, the guidance of the Court on these issues would have been important.
Similarly, although ‘stimulated’ by the AG, the CJEU does not express itself on another, problematic issue: what if, in between the two asylum applications, the removal of the applicant takes place? Is the second application, which follows the return of the asylum seeker to his country of origin, a ‘subsequent application’ or, rather, a ‘new application’? In the case L.R., the applicant had his 1st asylum application rejected by the Norwegian authorities, which then removed him to Iran. Six years later, he applied again for asylum in Germany. In light of such considerations, what is the impact of a removal measure on an asylum application? Does time play a role and, if so, how long shall pass between the removal of the asylum seeker and his second application? And what if in the meantime the circumstances in the country of origin have changed? The AG highlights that the applicant’s removal between the 1st and 2nd application «has significant consequences for the interpretation of the concept of ‘subsequent application’» (Opinion, §31). Indeed, he argues that the return of the applicant to his home country breaks the continuity between the asylum requests, making the 2nd application actually a new application, rather than a subsequent one (thereby preventing the Member State to declare it inadmissible).
This issue could have deserved attention from the Court which, however, remained silent on the matter.
C. Suggested Reading
To read the case : CJEU, Judgment of 20 May 2021, L.R., Case C-8/20, EU:C:2019:219
Case law :
- CJEU, Judgment of 19 March 2019, Ibrahim and Others, joined Cases C-297/17, C-318/17, C-319/17 and C-438/17, EU:C:2019:219
- ECtHR (Grand Chamber), Judgment of 4 November 2014, Tarakhel v. Switzerland, Application no. 29217/12
- Opinion of Advocate General Saugmandsgaard Øe, delivered on 18 March 2021, L.R., Case C-8/20, EU:C:2021:221
- M. Lys, « Le risque qu’un demandeur d’asile soit exposé à une situation de dénuement matériel extrême empêche son transfert vers l’État membre normalement compétent pour le traitement de sa demande d’asile ou vers celui qui lui a déjà accordé une protection interna», Cahiers de l’EDEM, mars 2019.
- E. Neraudau, « Des garanties individuelles avant transfert Dublin litigieux, gage de respect de la Convention EDH », Newsletter EDEM, novembre-décembre 2014.
To cite this contribution : F. L. Gatta, “It’s not one of us! The Dublin System and associated countries: the Court of Justice clarifies the position of Norway”, Cahiers de l’EDEM, June 2021.