Facts of the case
The case concerned a third country national who entered Croatia via Serbia in 2016. The Croatian authorities arranged for him to be transported to the Slovenian border, which he entered in February 2016. The applicant then lodged an application for international protection in Slovenia.
The Slovenian authorities asked Croatia to take charge of the applicant. The Croatian authorities acceded to that request. Consequently the Slovenian authorities decided not to examine the application of international protection and to transfer the applicant to Croatia, which was the Member State responsible under the “irregular crossing criteria” established under article 13 of the Dublin III Regulation.
The applicant challenged the decision of the Slovenian authorities. In the course of that proceeding, the Supreme Court of Slovenia decided to refer the case to the CJEU for a preliminary ruling.
The legal questions referred to the CJEU are the following:
1) Does Article 27 of the Dublin III Regulation establishing a right to an effective remedy apply also when a Member State has already decided that it will not examine the application for asylum and another Member State has accepted to take charge of the applicant?
2) What is the relationship between the notion of irregular concept under the Dublin regulation and that established under the Directive 2008/115/EC and Article 5 of Regulation (EC) No 562/2006 as amended by Regulation (EU) No 610/2013 (Schengen Borders Code)
3) Are the periods set up under Article 13(1) and Article 29(2) of the Dublin III Regulation* suspended when the applicant exercises the right to judicial protection, especially when the national court has made a reference for a preliminary ruling to the CJEU?
* Article 13(1) of the Dublin III Regulation stipulates that the responsibility to examine the application for international protection arising on the basis of the “irregular entry criteria” ceases 12 months after the date on which the irregular border crossing took place. Article 29(2) of the Dublin III Regulation states that if the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State.
First, the CJEU reiterated what was already established in its previous case Ghezelbash C-63/15 and found that an applicant of international protection is entitled to plead not only about the legal and factual situation in the Member State to which the applicant will be transferred but also about the incorrect application of the criterion for determining responsibility relating to irregular crossing of the border of a Member State, as laid down in Article 13(1) of that Regulation. The CJEU further argued that the fact that another Member State (in this case Croatia) had already accepted to take charge of the applicant does not exclude the right to a judicial review of the transfer before the transferring Member State (in this case Slovenia), especially because under Article 26 Dublin III Regulation the person concerned may be notified of the transfer decision only after the requested Member State has agreed to take charge/take back that person.
Second, the CJEU held that a third-country national admitted to the territory of a first Member State, - without satisfying the entry conditions required in that Member State (eg without a visa entry on humanitarian grounds) - for the purpose of transit to another Member State in order to lodge an application for international protection there, must be regarded as having ‘irregularly crossed’ the border of that first Member State, within the meaning of Article 13(1) of the Dublin III Regulation (see also Jafari, C-646/16). The fact that border crossing took place in a situation of an exceptionally large number of arrivals of international protection applicants was said not to be relevant by the CJEU.
Third, it was maintained that the rule established under Article 13(1) Dublin III Regulation is not affected in cases such as the present one, where the period of 12 months following the irregular crossing of the border has already expired on the date when the applicant first lodged his/her application for international protection with a Member State. The CJEU further clarified that the period indicated under Article 29 of the Dublin III Regulation does not start running until there is a final decision on the appeal of the applicant or as long as the appeal has a suspensory effect.