CJEU – C 213/17 (X), 5 July 2018
| Country of Domestic Proceedings: | Netherlands |
| Country of applicant: | Pakistan |
| Court name: | Court of Justice of the European Union |
| Date of decision: | 05-07-2018 |
| Citation: | Court of Justice of the European Union, Case C 213/17 (X), 5 July 2018 |
Keywords:
| Keywords |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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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under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who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. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The case concerned the application of a take back request under the the Dublin III Regulation where an asylum applicant has lodged multiple asylum applications in two different Member States and is the subject of a European Arrest Warrant.
Facts:
In March 2011, the applicant, lodge an initial application for internal protection. In September 2011, the application was rejected and subsequent appeals were dismissed. In June 2014, the applicant lodged a second application for international protection which was again rejected. His appeal was also dismissed. In September 2014, the applicant left the Netherlands, where he had been charged with a sexual offence.
He went on to Italy where he again applied for international protection, however the Italian authorities surrendered him to the Netherlands authorities under a European arrest warrant. The applicant appealed the decision ordering his transfer. In April 2015, an interim measure was granted and the State Secretary was prohibited from transferring the applicant to Italy for a period of four weeks.
In May 2015, the applicant lodged a new application for international protection in the Netherlands. This was rejected as the Dutch Authorities claimed that it had already been established that the Italian Republic was responsible for examining the application for international protection. His appeal against this decision was dismissed. In October 2015, the criminal proceedings against the applicant were discontinued.
The Dutch court made a request for a preliminary ruling by the District Court of The Hague on the application of the Dublin III Regulation where an asylum applicant has lodged multiple asylum applications in two different Member States and is also the subject of a European Arrest Warrant.
Decision & reasoning:
First, the Court ruled that the take-back procedure (laid down in Article 23 of the Dublin III Regulation) is applicable to a third-country national who has lodged a new application for international protection in one Member State although they had lodged a previous application in another Member State which had been rejected by a decision of the competent authority, even if that decision is not yet final due to a pending appeal.
This means that, the authorities of the Member State where the new application was lodged have the power to make a take back request in respect of the person concerned. However, the request must be made as quickly as possible and in within the periods laid down in that provision (as per the Court’s conclusions in C‑670/16 Mengesteab). This is so even where another Member State was responsible for examining an application lodged previously or where an appeal brought against the rejection of one of those applications is pending before a court of that Member State when those periods expired.
Secondly, the Court found the making of a take back request in respect of a third-country national who is staying on its territory without a residence document does not require that Member State to suspend the examination of an appeal brought against the rejection of an application for international protection lodged previously and subsequently to terminate that examination in the event that the requested Member State agrees to that request. When making a take back request in such cases, Member States are not obliged to provide information relating to the appeal.
Finally, the Court ruled that where an applicant for international protection has been surrendered by one Member State to another Member State under a European Arrest Warrant and is staying on the territory of that second Member State without having lodged a new application for international protection there, that second Member State may request the first Member State to take back that applicant and is not required to decide to examine the application lodged by that applicant. In the Court’s view, ruling otherwise could have the effect of deterring Member States from requesting the surrender of an asylum applicant for criminal prosecution in order to avoid having the responsibility for examining that person’s application at the end of the criminal proceedings transferred to them.
Outcome:
1. Article 23(3) 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 as meaning that the Member State in which a new application for international protection has been lodged is responsible for examining that application when no take back request has been made by that Member State within the periods laid down in Article 23(2) of that regulation, even though another Member State was responsible for examining applications for international protection lodged previously and the appeal brought against the rejection of one of those applications was pending before a court of that other Member State when those periods expired.
2. Article 18(2) of Regulation No 604/2013 must be interpreted as meaning that the making by a Member State of a take back request in respect of a third-country national who is staying on its territory without a residence document does not require that Member State to suspend its examination of an appeal brought against the rejection of an application for international protection lodged previously, and subsequently to terminate that examination in the event that the requested Member State agrees to that request.
3. Article 24(5) of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, a Member State making a take back request on the basis of Article 24 of that regulation, following the expiry, in the requested Member State, of the periods laid down in Article 23(2) thereof, is not required to inform the authorities of that requested Member State that an appeal brought against the rejection of an application for international protection lodged previously is pending before a court of the requesting Member State.
4. Article 17(1) and Article 24 of Regulation No 604/2013 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings at the time the transfer decision was made, in which an applicant for international protection has been surrendered by one Member State to another Member State under a European arrest warrant and is staying on the territory of that second Member State without having lodged a new application for international protection there, that second Member State may request that first Member State to take back that applicant and is not required to decide to examine the application lodged by that applicant.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-394/12, Shamso Abdullahi v Bundesasylamt |
| CJEU - C-670/16 - Mengesteab |
| CJEU - C-201/16, Shiri |
| CJEU - C-36/17, Ahmed |
| CJEU - Case C-360/16, Hasan |
| CJEU - C-578-16, C. K. and Others, 16 February 2017 |