Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgment the CJEU interpreted Article 27(1) of the Dublin III Regulation, read in the light of recital 19 of the regulation and Article 47 of the Charter of Fundamental Rights. It concerns factual situation relevant for the review by a court or tribunal of a transfer decision based on Dublin III regulation.
Mr Hasan made an asylum application in Germany on 29 October 2014. German authorities requested the Italian authorities on 11 November 2014, to take him back on the basis of the Dublin III Regulation. The Italian authorities did not reply to that take back request.
By decision of 30 January 2015, the German authorities rejected Mr Hasan’s asylum application as inadmissible, on the ground that the Italiy was responsible for examining that application.
Mr Hasan challenged this decision before Administrative Court in Trier, Germany and at the same time made an application requesting that his action be given suspensive effect. That court rejected the application for suspensive effect and then dismissed the action itself on 30 June 2015.
On 3 August 2015, Mr Hasan was transferred to Italy. He returned illegally to Germany within the same month, however.
Mr Hasan appealed against the judgment of the Administrative Court in Trier. His appeal was upheld, on 3 November 2015, by a decision of the Higher Administrative Court, Rhineland-Palatinate. The Higher Administrative Court held in particular that Mr Hasan’s transfer to Italy had taken place after the six-month time limit laid down in Article 29(1) of the Dublin III Regulation had expired, with the result that it was now the Germany which was responsible for examining his asylum application.
The German administrative authorities brought before the Federal Administrative Court, Germany an appeal against the decision of the Higher Administrative Court, Rhineland-Palatinate.
The Federal Administrative Court considers that the appeal court’s analysis is wrong, as, in its view, a correct calculation of the period laid down in Article 29(1) of the Dublin III Regulation indicates that Mr Hasan’s transfer to Italy took place before that period expired.
Nevertheless, the Federal Administrative Court takes the view that it cannot be definitively established that the Italian Republic was initially responsible for examining Mr Hasan’s asylum application, inasmuch as Italy may have to be ruled out as being so responsible, pursuant to Article 3(2) of that regulation, if there are any systemic flaws in its asylum procedure and reception conditions for applicants for international protection.
That said, the Federal Administrative Court points out that it will not be necessary to resolve that issue if, as a result of Mr Hasan’s illegal return to Germany, responsibility for examining his asylum application had already been transferred to the Federal Republic of Germany by the time the decision of the appeal court was given or whether a take back procedure could still be undertaken at that time.
1. Whether Article 27(1) of the Dublin III Regulation is to be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is the situation obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter.
2. Whether Articles 23 and 24 of the Dublin III Regulation must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third-country national or whether it is possible to transfer that person anew to Member State ‘A’ without such a procedure being followed.
3. Whether Article 24(2) of the Dublin III Regulation must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and, if so, whether those periods may begin to run before the requesting Member State has become aware that the person concerned has returned to its territory.
4. Whether Article 24(3) of the Dublin III Regulation must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge.
5. Whether Article 24(3) of the Dublin III Regulation must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision.
6. Whether Article 24(3) of the Dublin III Regulation must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection, the Member State on whose territory that person is staying without a residence document can still make a take back request or transfer the person concerned to another Member State without making such a request.
1. Article 27(1) of the Dublin III Regulation, read in the light of recital 19 of the regulation and Article 47 of the Charter, must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which provides that the factual situation that is relevant for the review by a court or tribunal of a transfer decision is that obtaining at the time of the last hearing before the court or tribunal determining the matter or, where there is no hearing, at the time when that court or tribunal gives a decision on the matter.
2. Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national who, after having made an application for international protection in a first Member State (Member State ‘A’), was transferred to Member State ‘A’ as a result of the rejection of a fresh application lodged in a second Member State (Member State ‘B’) and has then returned, without a residence document, to Member State ‘B’, a take back procedure may be undertaken in respect of that third-country national and it is not possible to transfer that person anew to Member State ‘A’ without such a procedure being followed.
3. Article 24(2) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a third-country national has returned, without a residence document, to the territory of a Member State that has previously transferred him to another Member State, a take back request must be submitted within the periods prescribed in that provision and those periods may not begin to run until the requesting Member State has become aware that the person concerned has returned to its territory.
4. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where a take back request is not made within the periods laid down in Article 24(2) of that regulation, the Member State on whose territory the person concerned is staying without a residence document is responsible for examining the new application for international protection which that person must be permitted to lodge.
5. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that the fact that an appeal procedure brought against a decision that rejected a first application for international protection made in a Member State is still pending is not to be regarded as equivalent to the lodging of a new application for international protection in that Member State, as referred to in that provision.
6. Article 24(3) of Regulation No 604/2013 must be interpreted as meaning that, where the take back request is not made within the periods laid down in Article 24(2) of that regulation and the person concerned has not made use of the opportunity that he must be given to lodge a new application for international protection:
– the Member State on whose territory that person is staying without a residence document can still make a take back request, and
– that provision does not allow the person to be transferred to another Member State without such a request being made.