Spain - High National Court, 9 May 2013, No. 1935/2013
Keywords:
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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." |
Headnote:
It is an administrative appeal brought before the High National Court against the Ministry of the Interior’s decision to deny an examination of the application for international protection by a claimant of Pakistani nationality, on the basis that Germany is responsible for the examination in accord with EU Regulation 343/2003 of 18th February (Dublin Regulation).
The High National Court had not yet evaluated the basis of the application for international protection because, before doing so, an obstacle to the proceedings arose:this concerned the determination of the country responsible for examining the application and, in particular, the breach of the legal time period for the transfer of this responsibility (a maximum period of 6 months for the transfer).
Facts:
The claimant, a Pakistani national, requested asylum in Spain on 25th April, 2012.
At the admissibility stage of the application, elements were uncovered that indicated that Germany, not Spain, was the country responsible for examining the application because the claimant previously submitted an application for international protection in that country.
On 1st June, 2012, the request was referred to Germany to ask whether they would take charge of the application.On 5th June, 2012, Germany replied via a letter of acceptance that they would assume State responsibility for the application.
On 13th November, 2012, the claimant brought an appeal before the High National Court challenging the State’s decision.The State representative responded to the claim by asking for a dismissal.
The High National court set the date of 30th April, 2013, for the ruling.
As of this date, the Applicant had not been transferred to Germany.
Decision & reasoning:
Before evaluating the Appellant’s written claims or the State Representative’s response, the High National Court observed that the applicant had not been moved to the country deemed to have responsibility.
The matter of responsibility had been resolved but had not been acted upon.Neither the preliminary decision to deny the examination of the application nor the State Representative’s response to the application showed that the Applicant had been moved to Germany.
The Court recalled that as soon as Germany accepted responsibility, Article 20.1(d) of the EC Regulation 343/2003 of 18th February came into operation, giving the maximum time period to move the Applicant as 6 months from the date of acceptance by the requested State.Germany accepted on 5th June, 2012.
Alongside the main issue, the Chamber emphasised that in the State Representative’s aforementioned response to the application, although no mention was made of the transfer, they did discuss the inadmissibility of both the asylum application and the authorisation of permanent residence on humanitarian grounds.The Court availed itself of the opportunity to issue a reminder that these types of pleas affect the substance of the examination of the application and not the matter that was argued in the challenged decision, namely:the State’s responsibility (this time) to examine the basis of the asylum application.
Regardless,it determined that the maximum period of 6 months to make the transfer had been exceeded due to the State’s failure to act.The High National Court warned that the State had not kept a record for the Chamber or "displayed the minimum amount of care" in relation to the requirement to carry out the transfer, as a consequence of which the Court had no knowledge of the situation when the appeal was brought on 13th November, 2012.
Therefore, in accordance with the Dublin Regulation, the responsibility becomes that of the State where the application for international protection was submitted; namely, Spain.Consequently, at this stage no other matters relating to the merits of granting international protection (substance) will be examined.
Outcome:
The appeal was upheld and the denial of the examination of the application for international protection was declared invalid.The Chamber ordered the annulment of the procedure so that a decision on the substance of the application could be made.
Observations/comments:
This is an important decision because it exposes a repeated practice in Spain:the State finds solid grounds for establishing another Member State’s responsibility for examining an application for international protection (under the Dublin Regulation criteria), however, it does not carry out the necessary actions to effect this transfer and exceeds the maximum period of 6 months as required by Regulation 343/2003, which leaves Spain as the country responsible for examining the application.