Luxembourg - Administrative Tribunal, 28 March 2017, 2017-03-28_39098 and 39099
| Country of Decision: | Luxembourg |
| Country of applicant: | Ukraine |
| Court name: | Administrative Tribunal, 3rd Chamber |
| Date of decision: | 28-03-2017 |
| Citation: | 2017-03-28_39098 and 39099 |
Keywords:
| Keywords |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
Article 10 of Dublin III is inapplicable; Articles 9, 10 and 11 of the regulation provide for three different procedural situations, the applicant’s claim could lead to a separation of the family.
Facts:
On 26 August 2016, the applicant lodged a claim for international protection in Luxembourg, his wife and children doing the same four days later. The interviews took place the same days the applications were lodged. During the second interview, the authorities found that the female applicant held a Polish visa that was valid from 19 August to 02 September 2016.
On 27 September, the female applicant was heard again in order to determine the responsible State in relation to the Dublin III Regulation. By way of mail, the applicant asked to benefit from Art. 10 of the Regulation, which was subsequently refused.
Following a request by Luxembourg, Poland agreed to take responsibility of the asylum application as provided for in Art. 12(2) of the Regulation. The authorities of Luxembourg subsequently informed the couple of the imminent transfer of the female applicant as provided for in Art. 28(1) of the Regulation.
It is therefore against this implicit refusal decision (the transfer to Poland equated a negative decision to grant international protection) that the couple have decided to lodge an appeal against this decision.
Decision & reasoning:
Regarding the applicability of Art. 10 of the Dublin III Regulation, the court found that because the concept of “written” was not defined, it subsequently proceeded to do so. The court based itself on the recent judgment and defined it as “all types of writing clearly worded”. The court further established that the applicant’s request to benefit from the provisions of this article cannot be construed as negative even if the request was followed by more than three months of silence. The administrative judge did not use European law to establish a presumption of refusal in the context of an absence of answer concerning the article mentioned above.
Additionally, the judge analysed articles 9, 10 and 11 of the Regulation and came to the conclusion that all provided for a precise procedural situation:
o Article 9 provided for the situation where asylum seeker A has requested international protection but a member of his family had already applied for international protection in another Member State.
o Article 10 provided for the situation where asylum seeker A applies for asylum in a Member State but asylum seeker B (member of his family) had already applied in a different Member State, in which case the responsible State was already established and the examination of the merits of the application was ongoing.
o Article 11 provided for the situation where applicant A has applied for asylum in one Member State, but that applicant B (member of his family) has applied for asylum in another Member State and that the process is still ongoing and where the responsible State has not yet been established.
As a result, because the responsible State had yet to be determined in the case of the first application, Article 11 was to be applied here.
Outcome:
The administrative tribunal, having established that all the legal provisions pointed towards Poland, declared the appeal inadmissible on the principal level but admissible on the subsidiarity level (concerning the annulment of the decision).
Subsequent proceedings:
The judgement finds that it is up to the national judge to verify the good application of the Dublin III criteria : it finds that the administrative jurisdiction of Luxembourg is fully aware and upholds in good faith the European mandate which is incumbent on it.
The tribunal followed the same analysis of Article 12 as it did for Articles 9, 10 and 11 of the Regulation regarding the Polish visa that the wife of the applicant holds and came to the conclusion that Poland was responsible here as well. This illustrated that, for the Luxembourg jurisdictions at least; the concept of family unity would not be an obstacle to the application of the Dublin III criteria.
Observations/comments:
The original version of this summary was written by Passerell a.s.b.l. The translation into English was completed by Jessica Pradille.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - Law of 18 December 2015 |