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 ECJ recalls the judgement of 7 june 2016 Ghezelbash case ( C- 63/15), when considering Article 19, paragraph 2, of the Dublin II Regulation. In that case, the CJEU ruled that ‘Article 27, paragraph 1, of Regulation No 604/2013, read in the light of recital 19 thereof, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of that regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.‘
Mr Karim is a Syrian national. On 3 March 2014, he submitted an application for international protection to the Migrationsverket (Migration Board) in Sweden. The Eurodac system revealed that the applicant had made a request in Slovenia in May 2013. Therefore, the Swedish Migration Board requested Slovenia to take him back in conformity with the Regulation No 604/2013. The Slovenian authorities agreed to that take-back request on 3 April 2014. On these grounds, the Board rejected Mr Karim’s application for a residence permit, including his application for international protection and decided to transfer him to Slovenia. Mr Karim challenged the Board’s decision before the Administrative Court of Stockholm, which dismissed his action on the ground that, in the case where a Member State agrees to take back an asylum applicant, the latter may challenge his transfer to that Member State only by pleading the existence of systemic deficiencies. Mr Karim contested this judgment, claiming, firstly, that the Republic of Slovenia is not the Member State responsible for examining his asylum application and, secondly, that for humanitarian reasons his transfer should not proceed and that the asylum procedure in Slovenia has systemic deficiencies. The Swedish Court of Appeal in Immigration Matters decided to maintain the proceedings and to refer the case to the Court for a preliminary ruling on the interpretation of Articles 19 and 27 of EU Regulation No 604/2013 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.
The legal questions submitted by the Kammarrätten i Stockholm – Migrationsöverdomstolen (Administrative Court of Appeal, Stockholm, Court of Appeal in Immigration Matters) to the ECJ for a preliminary ruling concerned, firstly, the interpretation of the provisions on the right to an effective remedy set out in Regulation No 604/2013. In particular, the referring Court asked, if an asylum applicant has the opportunity to challenge the implementation of the criteria in Chapter III of Regulation No 604/2013 on the basis of which he or she is transferred to another Member State, which has agreed to receive him or her. Alternatively, it asked if, in line with the ECJ judgment of 10 December 2013, the so-called Abdullahi case (C‑394/12), the right to an effective remedy can be limited to only the right to an examination of the existence of systemic deficiencies in the asylum procedure and the reception conditions in the Member State to which the applicant is to be transferred.
The second legal question concerns the possibility to challenge the implementation of the criteria in Chapter III of Regulation No 604/2013.
“Article 19(2) 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 must be interpreted to the effect that that provision, in particular its second subparagraph, is applicable to a third-country national who, after having made a first asylum application in a Member State, provides evidence that he left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State.
Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, must be interpreted to the effect that, in a situation such as that at issue in the main proceedings, an asylum applicant may, in an action challenging a transfer decision made in respect of him, invoke an infringement of the rule set out in the second subparagraph of Article 19(2) of that regulation.”
Dublin III Regulation 604/2013
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment