Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Mohammad Khir Amayry

Case Number: C-60/16

Relevance of Decision

The Court reiterated the obligation of Member States to act with due diligence in procedures involving detained third-country nationals waiting for a transfer to another Member State.

Detention of third-country national under the Dublin III Regulation lasting three months during which the transfer may be reasonably carried out exceeds the period of time which is reasonably necessary for the required administrative procedures with due diligence.

Facts of the case

Mr. Khir came to Sweden through Italy. He applied for international protection in Sweden.

Under Dublin III Regulation the Swedish authorities requested the Italian ones to take charge of Mr. Khir. Italian authorities accepted the request.

As a result Swedish asylum authorities decided to transfer Mr. Khir to Italy and taking the view that there was a significant risk of his absconding, decided to detain him.

Mr. Khir appealed this decision but it was upheld by the court. Mr. Khir once again appealed the decision but it did not have a suspensive effect and so he was transferred to Italy.

Mr. Khir returned to Sweden where he once again applied for international protection.

Swedish national court granted Mr. Khir leave to appeal concerning his detention.

Legal Questions

Under Article 28 of the Dublin III Regulation what is the maximum period of detention of an applicant for international protection when the detention begins after the requested Member State has accepted the request to take charge?

Court Findings

The Court reminded that while interpreting a provision of EU law, not only the wording but also the context and the objectives pursued by the rules must be considered. Further the Court pointed that the objective of Dublin III Regulation is to enable effective transfer of asylum seekers to the Member State responsible for the examination of the application for international protection.

The Court highlighted that the EU legislature took the view that a period of six weeks could be necessary in order for a transfer of a detained person to be carried out. The maximum time period as set in Article 28 (3) of the Dublin III Regulation, that is six weeks, applies only in the situation where the person concerned is already detained when one of the two events covered by that provision takes place -  acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect.

Setting a maximum six weeks detention period for all third-country nationals who are transferred to another Member State under Dublin III Regulation would limit the effectiveness of the Regulation and encourage persons concerned to abscond. Therefore such an interpretation cannot be acceptable.

Consequently the Court held that the detention of third-country nationals who are transferred to another Member State under Dublin III Regulation must nonetheless be for as short a period as possible and not for longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer is carried out. The Court also stressed that the administrative procedures relevant to the grounds for detention have to be executed with due diligence and that Article 6 of the Charter has to be taken into consideration.

It is therefore incumbent upon the competent authority, under the supervision of national courts, to carry out diligently the transfer procedure and not to extend the detention for a period of time beyond what is necessary for the purposes of that procedure, assessed by taking account of the specific requirements of that procedure in each specific case.

Furthermore, the person concerned may not be detained for a period vastly in excess of six weeks during which the transfer could be reasonably carried out. It follows from the Dublin III Regulation that that period is, in principle, sufficient.

Consequently, given that the fact that the detention of an applicant for international protection begins after the requested Member State has accepted the take charge request, detention of 3 or 12 months during which the transfer may be reasonably carried out exceeds the period of time which is reasonably necessary for the required administrative procedures with due diligence until the transfer is carried out to be satisfied.

By contrast, in such a situation a period of detention of two months would not be found to be necessarily excessive, its suitability in relation to the facts of each specific case having nevertheless to be assessed by the competent authority under the supervision of national courts.

Weblink

Country

Europe