Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this decision, the CJEU recalls the Abdullahi case (C- 394/12), when considering Article 19, paragraph 2, of the Dublin II Regulation, and ruled that the grounds of appeal or review against a transfer decision are limited in a situation, where a Member State agrees to take charge of an applicant for asylum. In the Abdullahi case, it was established that the applicant can only call such a decision into question by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that he would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. The referring court asked whether Abdullahi can be still applied in the context of the Dublin III Regulation and whether an individual such as Mr Ghezelbash is therefore precluded from challenging the application of the Chapter III criteria in appeal or review proceedings under Article 27, paragraph 1, of that regulation.
On 4 March 2014, Mr Ghezelbash applied for asylum in the Netherlands. Thanks to the EU Visa Information System (VIS), the Dutch authorities discovered that he had been granted a visa by French authorities, which had been valid from December 2013 to January 2014. The Dutch authorities requested France, which accepted, to deal with Mr Ghezelbash’ asylum request on the basis of Regulation No 604/2013 (Dublin III). Mr Ghezelbash requested the Dutch authorities to examine his application under the extended asylum application procedure in order to allow him to submit original documents proving that he returned to Iran and remained there from 19 December 2013 to 20 February 2014, that is after having visited France. According to the applicant, this meant that France was not the Member State responsible for examining his asylum application. By decision of 21 May 2014, the Dutch authorities rejected Mr Ghezelbash’s application for a residence permit for a fixed period on grounds of asylum. Mr Ghezelbash brought proceedings challenging that decision and requested the judge dealing with interim relief proceedings (District Court, The Hague) to adopt an interim measure. By decision of 13 June 2014, the judge dealing with interim relief proceedings granted Mr Ghezelbash’s application for an interim measure and ordered that the effects of the State Secretary’s decision of 21 May 2014 to be suspended. Furthermore, it decided to maintain the proceedings and to refer the case to the CJEU for a preliminary ruling.
The issue raised by the referring Court in the first question concerned the interpretation and the scope of Article 27, paragraph 1, of Regulation (EU) No 604/2013 read together with recital 19 of the Dublin III Regulation. In particular, the referring Court asked whether an applicant for asylum has the right to an appeal or review against a Member State’s application of the Chapter III criteria. Within this question, the referring Court also asked, whether, if the asylum applicant cannot invoke the Chapter III criteria, he can instigate an appeal or review under Article 27, paragraph 1, of the Dublin III Regulation only in cases where family circumstances are an issue as set out in Article 7 of that regulation or whether there are other grounds for so doing.
“Article 27(1) of 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, read in the light of recital 19 of the regulation, must be interpreted as meaning that, in a situation such as that in the main proceedings, an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the regulation.”
Dublin III Regulation 604/2013
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment