Luxembourg - Administrative Tribunal, 38699, 21 December 2016
| Country of Decision: | Luxembourg |
| Country of applicant: | Georgia |
| Court name: | Administrative Tribunal, Third Chamber |
| Date of decision: | 21-12-2016 |
| Citation: | 38699 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
On the basis of CJEU jurisprudence, the administrative tribunal found that all asylum applicants have a right to appeal the manner in which the responsibility criteria of Dublin III has been applied to their individual case and the determination of a responsible Member State where there are systemic deficiencies.
Facts:
On 09 September 2016, the applicant applied for asylum and was invited to a hearing on that same day. The authorities discovered via EURODAC that the applicant had already applied for asylum in different countries (including EU and non-EU Member States).
A second hearing took place on 27 September in order to establish the responsible State as provided for in Dublin III. Germany was found responsible and the German authorities accepted to recognize the applicant’s asylum application.
The applicant was informed via letter from the Minister of his transfer to Germany on 26 October 2016. The applicant subsequently appealed this decision.
Decision & reasoning:
The court first referred to Art. 28(1) of the 2015 Law and then referred to Art. 18(1) of Dublin III.
The court recalled that if a State was already examining an asylum application, then that same application cannot be examined by another State and must be referred back to the first State.
The Court recalled CJEU jurisprudence regarding the determination of the responsible State and stated that all applicants have a right to appeal the manner in which the Dublin III criteria have been applied in their case. This appeal may include two phases: request an examination of the way the authorities have applied the provisions and request an examination of the asylum context in the country in which the applicant may be transferred.
The court further recalled CJEU jurisprudence to express a warning against forum shopping. The court explained that there should be no confusion: all asylum applicants have an effective and positive right to appeal in this context, which is different from forum shopping.
On the basis of this reasoning, the court analysed the way in which the Dublin III provisions have been applied in this case. The court found that any Member State may decide at their discretion to take responsibility of a case, whether or not a previous application had been made in another State.
Outcome:
Because Germany has agreed to examine the asylum application at the bequest of Luxembourg, the court found that the decision to transfer the applicant to Germany could not be contested and that the appeal was unfounded
Observations/comments:
This decision was exceptional because it not only illustrated the authority of the CJEU over national authorities and also because it provided for a positive right available to all asylum seekers.
The right for an asylum seeker to appeal a governmental decision, either because of the manner in which the determination criteria is applied or because of the systemic failures in the State in which they are to be transferred is therefore a recognised positive right in the asylum law of Luxembourg.
The original version of this summary was written by Passerell a.s.b.l. and the translation compelted by Jessica Pradille.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - o Law of 18 December 2015 : Articles 28 (1) and 34 (1) |
Cited Cases:
| Cited Cases |
| CJEU - C-394/12, Shamso Abdullahi v Bundesasylamt |
| CJEU - C‑63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie |