Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The case clarifies how to interpret the criteria for determining the State responsible for examining an application for international protection established by Council Regulation (EC) No 343/2003 of 18 February 2003 (Dublin II Regulation). More specifically, the case – to be read together with the N. S. and Others – shed lights on the obligations of the Member State with which the asylum seeker lodged his/her application in cases where a Dublin transfer to the responsible State would raise a real risk for the asylum seeker of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.
Mr Puid arrived in Greece from Iran. After staying in Greece for four days, he travelled on to Germany, where he lodged his application for asylum.
He was placed in detention and was ordered a transfer to Greece. Mr Puid appealed the decision before the Verwaltungsgericht. The Verwaltungsgericht Frankfurt am Main annulled the decision of the Bundesamt and concluded that the enforcement of the order for Mr Puid’s return had been unlawful. Germany was in fact required to exercise the right to assume responsibility conferred by Article 3(2) of the Dublin II Regulation in light of the conditions in Greece in relation to the reception of asylum seekers and processing of asylum applications.
The case was appealed by Germany before the Higher Administrative Court, Hesse. The Administrative Court decided to stay the proceedings and to refer four questions to the Court for a preliminary ruling, seeking to ascertain the scope of Article 3(2) of the Dublin II Regulation where the situation prevailing in the Member State, which the criteria set out in Chapter III of the Dublin II Regulation indicate is responsible for examining an asylum application, poses a threat to the fundamental rights of the asylum seeker in question.
By letter of 21 December 2011, the Registrar of the Court sent the referring court the judgment of 21 December 2011 in Joined Cases C‑411/10 and C‑493/10 N. S. and Others [2011] ECR I‑13905, requesting to inform the Court whether, in the light of that judgment, it wished to maintain the reference for a preliminary ruling. By decision of 1 June 2012, the Hessischer Verwaltungsgerichtshof withdrew the first three questions, considering that they had been adequately addressed in the judgment in N. S. and Others, but maintained the following:
‘Does an enforceable personal right on the part of the asylum seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of [the] Regulation?’
The legal question in the present case is if the Member State with which the asylum seeker lodged his/her application is obliged itself to assume responsibility and examine the asylum application, in case the situation of the Member State responsible for examining the application according to the criteria set out in Chapter III of the Dublin II Regulation raises a real risk for the asylum seeker of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter due to systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers.
The CJEU found that the Dublin II Regulation sets out a number of hierarchical criteria for determining the State responsible for examining an asylum application and that those criteria apply in the specific order in which they are set out.
Therefore, when Article 3(2) Dublin II Regulation applies, the finding that it is impossible to transfer an applicant to the Member State initially identified as responsible, does not automatically entails that the Member State with which the asylum seeker lodged his/her application is obliged itself to assume responsibility and examine the asylum application. On the contrary, that Member State must continue to examine the criteria set out in the Dublin II Regulation in order to establish whether one of those criteria enables another Member State to be identified as responsible for the examination of the asylum application.
Only if no other Member State can be identified, the first Member State with which the application was lodged becomes responsible for examining it in accordance with Article 13 of the Dublin II Regulation.
In any event, the Member State in which the asylum seeker is located must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of the Dublin II Regulation.
The application of the EU Charter of Fundamental Rights to asylum procedural law
Handbook on European law relating to asylum, borders and immigration
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment