Court of The Hague, 20 April 2018, NL 18.5178

In 2017, after the appeals against this refusal of family reunification had failed, the applicant, who is 19 by that time, entered Italy irregularly, where he was registered in the EURODAC system.

 

The applicant traveled on to his family in the Netherlands and filed a request for international protection (Vreemdelingenwet art. 28). This was not taken into consideration by the State Secretary for Security and Justice who argued that, according to the Dublin Regulation, Italy was the member state responsible for examining the application.

 

The applicant appealed this decision before the Court of The Hague.

 

Secondly, the Court dismisses the applicant’s argument that the Netherlands is the state responsible based on Article 9 of the Dublin Regulation: he is no longer a minor and can therefore not be considered a family member as defined in Article 2 of this Regulation.

 

Thirdly, the Court examines the argument forwarded by the State Secretary on his decision not to apply the discretionary clause under Article 17 of the Dublin Regulation. The State Secretary does not consider it disproportionately harsh not to apply Article 17 since the applicant can request family reunification after his transfer to Italy.

 

The Court dismisses this argument and states that the State Secretary in its weighing of interests did not take into account the fact that earlier requests for family reunification have been refused. Moreover, the applicant requests international protection, not family reunification. Therefore, it is not established that he is trying to circumvent the regular channels to obtain family reunification.

 

Also the Court states that the State Secretary, in its new decision, will have to take into account the specific circumstances of the case, in particular the potentially destabilising effect of the applicant’s transfer to Italy on the family and the fact that the long interruption in family life, which was the reason to refuse family reunification, was not a deliberate choice but a consequence of circumstances.

 

According to the national framework (Vreemdelingencirculaire 2000 (C)), the State Secretary applies these discretionary clauses ‘with reluctance’. They can be applied when, given the specific, individual circumstances, a transfer to another Member State would come down to ‘disproportionate harshness’.

The Court points out that, notwithstanding their discretionary power when applying this Article, the State Secretary is obliged to balance interests carefully.

 

The Court has correctly considered the hierarchy of the Dublin criteria. In this case the applicant cannot be considered a family member according to the definition in Article 2 of the Dublin Regulation because he is not a minor. Article 9 therefore does not apply. Nevertheless, the impact on family life of a Dublin transfer still has to be taken into account, and can give rise to an application of the discretionary clauses of Article 17. This even holds when an earlier request for family reunification has been refused because family ties were not considered sufficiently proven based on a period of separation between the applicant and his family, especially when it is established that the separation was not a deliberate choice. 

 

The Court seems to suggest that the criterion of “disproportionate harshness” that the Secretary of State applies when deciding on the use of the discretionary clause of Article 17 of the Dublin Regulation raises the bar too much and risks to endanger the right to family unity, which, according to the Preamble, “should be a primary consideration of Member States when applying this Regulation.”

 

This summary was written by Roel Stynen, Law Student at Ghent University.