Extension of the Right to an Effective Remedy under Dublin III: the Shiri judgment
The Court of Justice of the EU found that the effective remedy of an applicant for international protection includes the right to rely on the expiry of the transfer period of the Dublin Regulation.
On 25 October 2017, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its judgment in the case C-201/16 Shiri which considered the interpretation of the Dublin III Regulation. More specifically, the case concerned two preliminary questions posed by the Austrian Upper Administrative Court on the responsibility for the application for international protection of Mr. Shiri according to the Dublin III Regulation.
The factual background of the case goes back to 2015. In that year, Mr. Shiri entered Bulgaria and applied for asylum on 19 February 2015. Later in that year, on 7 March 2015, he lodged an asylum application in Austria. In principle, under the Dublin III Regulation, the first country of arrival is responsible for examining the application for international protection. Therefore, on 9 march 2015, the Austrian authorities asked the Bulgarian authorities to take Mr. Shiri back. The Bulgarian authorities agreed to the take back request. As a consequence, the Austrian authorities declared the asylum application of Mr. Shiri inadmissible, ordered his transfer and determined that his removal to Bulgaria was lawful. Mr. Shiri challenged this decision arguing that Austria had become the responsible EU Member State for examining his application as the six-month period for a transfer as contained in Article 29(1) and (2) Dublin III Regulation had expired. In order to be able to deliver a final judgment, the Austrian Upper Administrative Court asked the CJEU two preliminary questions. Firstly, the Court wanted the CJEU to provide whether an applicant could actually rely on the expiry of the six-month transfer period in terms of his effective remedy. Secondly, the Austrian Court wondered whether the responsibility for examining the application was automatically transferred to Austria after the expiry of the six-month period and whether this transfer of responsibility was dependent on the refusal of Bulgaria to examine the application.
The CJEU started by answering the second preliminary question and stated that, by applying Case C-670/16 Mengesteab by analogy, it was apparent from the wording of Article 29(2) Dublin Regulation III that it provided for an automatic transfer of responsibility to the requesting Member State, without making that conditional on any reaction from the Member State responsible. Furthermore, the CJEU determined that this also flows from one of the objectives of the Dublin III Regulation which is to ensure the rapid processing of applications for international protection. Moreover, as a last argument it relied on the rules relating to the transfers of applicants after a take back or take charge request and concluded that they also do not include the obligation for states to again express their view after accepting such a request. Therefore, the CJEU concluded that when the transfer does not take place within the six-month time limit, the responsibility for examining an application for international protection is automatically transferred to the requesting Member State without it being necessary for the requested Member State to refuse to take charge or take back the applicant.
In order to answer the first preliminary question, the CJEU relied again on its judgment C-670/16 Mengesteab. In relation to the scope of the effective remedy, the CJEU ruled in that case that Article 27(2) Dublin III Regulation must be interpreted in such a way that the action for which it provides must be capable of relating to the observance of the procedural safeguards laid down by the regulation. Accordingly, the CJEU, taking into account the objective of the effective protection of the persons concerned as laid down in recital 19 Dublin III Regulation and Article 47 Charter of Fundamental Rights and the objective of the rapid processing of an application for international protection as contained in recital 5 Dublin III Regulation, decided that the scope of an effective remedy of Article 27(1) must enable the applicant to rely on the expiry of the six-month period of the transfer decision.
Interestingly, the CJEU delivered preliminary rulings in comparable cases C-63/16 Ghezelbash and C-155/15 Karim. In Ghezelbash the CJEU concluded that the applicant had the right, in an appeal against a transfer decision against him, to plead the incorrect application of the criteria for responsibility of the Dublin III Regulation, more particularly the criteria relating to the granting of a visa as included in its Article 12. In Karim, the Court ruled that an applicant, in an action challenging the transfer decision made against him, may invoke an infringement of the rule that a Member State is no longer responsible for the application for international protection if the applicant has left its territory for at least three months as contained in Article 19(2) Dublin III Regulation. Hence, in those cases the Court also strengthened the effective remedy of the applicant.
However, the European Commission’s proposal for the Dublin IV Regulation seems to decrease the scope of application of the effective remedy. The new Article 28(4) provides that the scope of the effective remedy will be limited to an assessment of whether Articles 3(2) in relation to the existence of a risk of inhuman or degrading treatment or Articles 10 to 13 and 18 are infringed upon. Firstly, in cases where the first Member State of arrival is responsible for examining the application for international protection, the scope of the effective remedy only includes a right to complain before a Court in the situation where there is a risk of being subjected to inhuman and degrading treatment. Secondly, only applicants who are minors, family members or dependent persons can complain about the wrong application of rules determining the Member State responsible for their application. Hence, as opposed to the line of jurisprudence of the CJEU outlined above, this will severely decrease the scope of the effective remedy. We will have to wait for the outcome of the negotiations to see whether the European Commission’s proposal will be put into practice.