CJEU - Case C-155/15, George Karim v Migrationsverket

Facts:

Mr Karim is a Syrian national. He submitted in March 2014 an application for international protection in Sweden. The inspection revealed that the applicant had made a request in Slovenia in May 2013. The Swedish Migration Agency therefore called Slovenia to take back and examine the request of the applicant in accordance with Regulation 604/2013(Dublin III Regulation). However, the applicant informed the Migration Agency that he had stayed for more than three months outside the EU in the meantime. His passport contained one entry stamp from Lebanon on 20 July 2013. Slovenia still agreed to take back the applicant, so his application in Sweden was rejected. The applicant lodged an appeal with the Migration Court in Stockholm, which rejected his appeal for the reasons stated in the case C-394/12 Abdullahi: the court noted that the procedure was correct, that the applicant’s stay outside the EU in this case was irrelevant, and that there are no other reasons for the criteria of the Dublin III Regulation not to apply. The applicant appealed to the Stockholm Administrative Court of Appealwho in turn requested a preliminary ruling with the following questions to the CJEU:

(1)      Do the new provisions on the right to an effective remedy set out in Regulation No 604/2013 (recital 19 and Article 27(1) and (5)) mean that an asylum applicant is also to be given the opportunity to challenge [the implementation of] the criteria in Chapter III of Regulation No 604/2013 on the basis of which he or she is transferred to another Member State which has agreed to receive him or her? Alternatively, can the right to an effective remedy be limited to mean only the right to an examination of whether there are systemic deficiencies in the asylum procedure and the reception conditions in the Member State to which the applicant is to be transferred [as the Court of Justice held in the judgment of 10 December 2013 in Abdullahi, C‑394/12?

(2)      In the event that the Court should consider that it is possible to challenge [the implementation of] the criteria in Chapter III of Regulation No 604/2013, does Article 19(2) of Regulation No 604/2013 mean that that regulation may not be applied where the asylum applicant shows that he or she has been outside the territory of the Member States for at least three months?

Decision & reasoning:

The Court assesses the second question as a first port of call concluding that a new application giving rise to a new procedure must be carried out where an applicant provides evidence that he has made an application in one Member State, left said MS for a period of at least three months and then made a new application in another Member State. The latter State is obliged to complete the process for determining the MS responsible for examining the new application.

With regards to the first question the Court highlights that the applicant contends the infringement of Article 19(2) rather than the incorrect application of rules set out in Chapter III of the Dublin Regulation. Relying on the ratio decidendi of Ghezelbash, notably that a Member State’s responsibility may be called into question on account of the application of the Regulation rather than purely Article 4 Charter grounds, the Court finds that whilst Dublin III’s application is principally based on the establishment of MS responsibility, the rule set out in subparagraph 2 19(2) of the Regulation establishes a specific framework and process. The specificity of this process relates to the period of absence outside the first Member State and triggers a new determination procedure distinct from the first asylum application and which may result in the designation of a new MS.  Therefore in order for a correct application of the determination procedure to take place the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in sub para 19(2).

Outcome:

1.      Article 19(2) 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 to the effect that that provision, in particular its second subparagraph, is applicable to a third-country national who, after having made a first asylum application in a Member State, provides evidence that he left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State.

2.      Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, must be interpreted to the effect that, in a situation such as that at issue in the main proceedings, an asylum applicant may, in an action challenging a transfer decision made in respect of him, invoke an infringement of the rule set out in the second subparagraph of Article 19(2) of that regulation.

Observations/comments:

The judgment was preceded by an Opinion by Advocate General Sharpston who referred to her analysis in Ghezelbash, finding that Abdullahi is no longer applicable and that Article 27(1) allows the challenge of a transfer decision on the basis of misapplication of Chapter III criteria.

In relation to the second question, the AG noted that Slovenia’s acceptance of responsibility is not a transfer decision, so is not amenable to appeal under Article 27(1). However the assessment by the Swedish authorities of the information provided by Mr Karim in deciding to make a transfer decision is relevant to whether it correctly applied the Chapter III criteria. The AG concluded that if it is established that the applicant left the EU territory for over three months, meeting the conditions in Article 19(2) DRIII, any subsequent asylum application would give rise to a fresh procedure for determining the responsible MS.