Austria – Supreme Administrative Court, 31 March 2016, Ra 2015/20/0231

Facts:

The applicant, an Iranian national, lodged an application for international protection in Austria on 7 March 2015.

The application was rejected by the Federal Office for Immigration and Asylum (Federal Office) as inadmissible on 2 July 2015 on the grounds that Bulgaria was responsible for examining the application under Article 18 (1) (b) of the Dublin-III-Regulation because the applicant had previously, on 19 February 2015, applied for international protection there.

The applicant appealed this decision to the Federal Administrative Court (FAC) and filed a request for the appeal to have suspensive effect.

On 20 July 2016 the FAC granted the appeal because, in its view, due to the applicant’s medical condition the authorities would have had to consider invoking the sovereignty clause under Article 17 of the Dublin-III-Regulation. Therefore, the Court annulled the contested decision and remitted the case to the Federal Office to take a new decision. However, the Court did not take any decision regarding the request for the appeal to have suspensive effect.

Subsequently, the Federal Office rejected the application again as inadmissible on 3 September 2015. This decision was then appealed by the applicant who also filed a request for the appeal to have suspensive effect.
In an additional statement he argued that the responsibility to examine his application had been transferred to Austria in the meantime because the time limit for the transfer under Article 29 (1) of the Dublin-III-Regulation had already expired. The Bulgarian authorities accepted the request to take the applicant back on 23 March 2015 and, in the first proceedings, the FAC had not ordered for the appeal against the decision of the Federal Office of 2 July 2015 to have suspensive effect. 

The FAC held that the appeal was unfounded since Bulgaria was responsible for examining the application, at least, because it had explicitly declared its responsibility, and thus, invoked the sovereignty clause under Article 17 of the Dublin-III-Regulation.
Furthermore, according to the Court the time limit for the transfer under Article 29(1) of the Dublin-III-Regulation had not yet expired. In a case where the applicant seeks a legal remedy, the expiration of the time limit also depends on the time of the final decision on the appeal or review, where there is a suspensive effect. Due to the fact that after the contested decision has been annulled and the case remitted back to the Federal Office the applicant could not be transferred to Bulgaria until a new decision had been taken, the decision of the FAC had suspensive effect within the meaning of Article 29 (1) read in conjunction with Article 27 (3) of the Dublin-III-Regulation. Consequently, the time limit re-started to run at the time when the applicant could have been transferred again to Bulgaria after the FAC’s decision of 20 July 2015, which, according to national law, was the 24 September 2015.

Against this decision the applicant lodged an appeal with the SAC. In his view, the FAC erred in assuming that the time limit had not yet expired at the time of its second decision. According to the relevant case law of the SAC, a remedy against a transfer decisions does not automatically have a suspensive effect within the meaning of Article 29(1) read in conjunction with Article 27(3) of the Dublin-III-Regulation, and thus, the time limit for the transfer was also not interrupted by the decision of the FAC of 20 July 2015.  

Decision & reasoning:

The SAC, firstly, held that it was entitled to refer the case to the CJEU and that the decision of the case at hand required the clarification of the questions referred to it regarding the interpretation of EU law.

The first question, essentially, concerned the issue whether an applicant seeking a legal remedy under Article 27 of the Dublin-III-Regulation can claim that the responsibility has been transferred to the requesting Member State. If that was not the case the appeal would already be inadmissible due to the lack of an infringement of individual rights and the question whether the time limit for transfer has expired could be left open.

The SAC referred to the CJEU’s decision in Abdullahi regarding the Dublin-II-Regulation. In this case, the CJEU held that "in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Art. 10(1) of that regulation, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter of Fundamental Rights of the European Union".

Following this decision, the German-language jurisprudence argued that asylum seekers could not claim that a time limit has expired.  The corresponding provisions in the Dublin-Regulation were to be interpreted as organisational rules effective between the Member States and not as providing for an individual right to have an application for asylum examined by a certain Member State.

Against this background, the question arose whether the provisions on the right to an effective remedy against a transfer decision under the Dublin-III-Regulation, in particular Article 27(1) read in  light of Recital 19, mean that an applicant can claim that the responsibility for examining his application has been transferred  to the Member State requesting his transfer to another Member State based on the expiration of  the six-month time limit for the transfer (Article 29(2) read in conjunction with Article 29(1) of the Regulation).

This question also differs from the ones already submitted to the CJEU in the cases Ghezelbash (C-63/15) and Karim (C-155/15). These, essentially, referred to the issue of whether the new provisions of the Dublin-III-Regulation regarding an effective remedy had to be interpreted as to allow the applicant to challenge the application of the allocation criteria laid down in Chapter III. Thus, the SAC thought it possible that the CJEU would rule differently regarding the interpretation of Article 29 (1) in Chapter VI Section VI of the Dublin-III-Regulation.

In case the first question is answered in the affirmative, it needs to be further clarified, whether the responsibility is transferred from one Member State to the other only on the basis that the time limit has expired. It is also questionable  whether the passage “the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned” in Article 29 (2) first sentence of the Dublin-III-Regulation means that the responsibility remains with the Member State originally responsible if it does not claim that its obligation to take charge of or to take the applicant back has ceased or if it does take charge of/take back the applicant despite the fact that the time limit has expired.

In this context, the SAC pointed out that there were no rules providing for a procedure or form in which a Member State would have to claim that its obligation had ceased. 

Outcome:

The SAC stayed the proceedings and referred the questions set out above to the CJEU. The reference to the Court (Case C-201/16) can be found here. 

Observations/comments:

On 7 June 2016 the CJEU decided in Ghezelbash that Art. 27 (1) of the Dublin-III-Regulation read in light of Recital 19 has to be interpreted as allowing an asylum seeker to appeal a transfer decision under Article 27(1) on the grounds that the Chapter III allocation criteria were incorrectly applied (cf. Ghezelbash, 7 June 2016, C- 63/15 Para. 61).

On the same day the CJEU held in Karim that an applicant can claim under Article 27(1) that the authorities have violated Article 19(1) of the Dublin-III-Regulation, which provides that the responsibility of a Member State ceases and a Dublin procedure has to be initiated if the applicant has left the Dublin area for at least three months (cf. Karim, 7 June 2016, C-155/15 Para. 27). 

This case summary was written by Ann-Christin Bölter, an LLM graduate in Human Rights Law at Queen Mary's Univeristy. 

This case summary was proof read by Ana-Maria Bucataru, an LLM graduate in Human Rights Law at Queen Mary's Univeristy. 

Other sources:

Funke-Kaiser, Gemeinschaftskommentar zum Asylverfahrensgesetz 1992 [Stand: November 2014] §27a Rn. 196.1 (Funke-Kaiser, Collective Commentary on the Asylum Procedures Act 1992 [November 2014] §27a Para. 196.1)

Filzwieser/Sprung, Dublin III-Verordnung [2014] Art. 27 K 8
(Filzwieser/Sprung, Dublin III-Regulation [2014] Art. 27 K 8)

Lübbe, Prinzipien der Zuordnung von Flüchtlingsverantwortung und Individualrechtsschutz im Dublin-System, ZAR 4/2015, 125
(Lübbe, Principles of the allocation of responsibility for protection and the protection of the individual in the Dublin system, ZAR 4/2015, 125)