CJEU - C-245/11 K v Bundesasylamt

Facts:

The Applicant K, entered Poland irregularly and made her first application for asylum there. Then she rejoined one of her adult sons who already had refugee status in Austria along with his spouse and minor children. K then made an asylum claim there. The Asylum Court in Austria accepted that the daughter-in-law is dependent on K because she has a new-born baby and suffers from a serious illness and handicap following a serious and traumatic occurrence which took place in a third country. The daughter-in-law could also be at risk of violent treatment at the hands of male members of the family, on account of cultural traditions seeking to re-establish family honour. K has appropriate professional experience to support her and is her closest friend. Within those circumstances the Austrian authorities requested Poland to take back responsibility for K’s asylum claim under the Dublin Regulation. K appealed against this decision and the Asylgerichtshof found that the application of Article 15 or Article 3(2) should have been considered. It was in these circumstances that a preliminary reference was submitted to the CJEU.

Decision & reasoning:

The question to the CJEU was:  

1. Must Article 15 of Regulation No 343/2003 be interpreted as meaning that a Member State prima facie not responsible for examining the asylum claim of a person in accordance with the rules of Articles 6 to 14 of that regulation becomes automatically responsible if in that country the asylum seeker has a daughter‑in‑law who is seriously ill and, on account of cultural factors, at risk or has grandchildren below the age of majority who, as a result of the daughter‑in‑law’s illness, are in need of care and the asylum seeker is both willing and able to support her daughter-in-law and grandchildren? Does the same apply even if the Member State prima facie responsible has not made a request in accordance with the second sentence of Article 15(1) of Regulation No 343/2003?

2. Must Article 3(2) of Regulation No 343/2003 be interpreted as meaning that in the circumstances mentioned in Question 1 the Member State prima facie not responsible becomes automatically responsible if the responsibility otherwise provided for by Regulation No 343/2003 will result in an infringement of Article 3 or Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950] (Article 4 or Article 7 of the [Charter])? In that case, in the accessory interpretation and application of Article 3 or Article 8 of [that Convention] (Article 4 or Article 7 of the [Charter]), may more extensive notions of “inhuman treatment” or “family”, at variance with the interpretation developed by the European Court of Human Rights, be applied?

In examining Article 15, the CJEU made a distinction between Article 15(1) which affords Member States extensive discretion with regard to bringing together family members and Article 15(2) which restricts that power in a way, finding that Member States must ‘normally keep together’ the family. The Court held that the mere fact the asylum seeker was in Austria, the territory on which she seeks family reunification by humanitarian grounds does not have the effect of excluding per se the application of Article 15(2) (Para. 29). That provision includes not only bringing together family members but keeping them together as well.

As to whether Article 15(2) applies when it is not the asylum seeker who is dependent on another person but the family member present who is dependent on them the Court interprets in a way which makes it applicable in conformity with the objective of that provision under recital 7 (Para 32-26). In that respect, it also relies upon Article 11 of Regulation 1560/2003, the Implementing Regulation. As for the family definition, although daughter-in-law and grandchildren are not covered by Article 2 of the Regulation they are covered by the words ‘another relative’ used in Article 15(2). The Court noted that the different language versions of the Regulation diverged in this respect and that the English version used broader wording than in Article 2. The Court took into account the purpose of Article 15 to facilitate the bringing together of family members where that is necessary on humanitarian grounds in holding that it must be capable of applying to situations which go beyond those under the listed criteria (Para 40). It is necessary to establish if the person with whom the asylum seeker has family ties actually requires assistance and that the person who must provide the other person with assistance is in a position to do so (Para 42).

With regard to the wording in Article 15(2) of  ‘normally’ being obliged to keep these persons together, the Court states that this must be understood as meaning that a Member State may derogate from that obligation to keep the persons concerned together only if such a derogation is justified because an exceptional situation has arisen (Para 46). It was noted that no such exceptional situation arose in this case.

Overall the Court stated that national authorities are under an obligation to ‘ensure that the implementation of Regulation No. 343/2003 is carried out in a manner which guarantees effective access to the procedures for determining refugee status and which does not compromise the objective of the rapid processing of an asylum application’ (Para 48). The objective of speed must also be underlined even in cases like this where the responsible Member State has not made a request to the other State in conformity with Article 15(1). The Court noted also that Article 15(2) did not contain any reference to a request originating from another Member State to be required and such a requirement when the persons are already present in the Member State would be purely formal in nature and run counter to the obligation to act speedily. The Member State may not ignore the existence of a situation where the asylum seeker and another member of his family who are present together on the territory and have duly proved the existence of a situation of dependence within the meaning of Article 15(2). Consequently, in a situation such as that as issue in the main proceedings, Article 15(2) of the Regulation may be applied even if the Member State in which the application for asylum is lodged did not receive a request to that effect from the ‘Member State responsible’ (Para 53).

The Court answered the first question as stated below and in light of that answer the Court did not find it necessary to rule on the second question referred by the national Court.

Outcome:

The CJEU held: In circumstances such as those in the main proceedings, Article 15(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third‑country national must be interpreted as meaning that a Member State which is not responsible for examining an application for asylum pursuant to the criteria laid down in Chapter III of that regulation becomes so responsible. It is for the Member State which has become the responsible Member State within the meaning of that regulation to assume the obligations which go along with that responsibility. It must inform in that respect the Member State previously responsible. This interpretation of Article 15(2) also applies where the Member State which was responsible pursuant to the criteria laid down in Chapter III of Regulation No 343/2003 did not make a request in that regard in accordance with the second sentence of Article 15(1) of that regulation.

Observations/comments:

The Advocate General’s opinion was not available in English.

European Law Blog article on this case: http://europeanlawblog.eu/?p=1271

Analysis by Steve Peers on revising the Dublin rules: http://www.statewatch.org/analyses/no-186-dublin.pdf

http://www.statewatch.org/analyses/no-220-ceas-second-phase.pdf

See also:

http://migrationireland.blogspot.be/2013/02/the-dublin-ii-regulation-ten-years-on.html

As for the impact on the recast Dublin Regulation 604/2013, the definition of relatives in the recast Regulation is narrower than the open definition of relatives in the previous Dublin rules as this judgment has shown to include mothers-in-law for example as relatives. Also in relation to the recast dependent persons provision (recast Article 16) it now just includes a child, sibling or parent legally resident and is narrower than the interpretation in this case.  Member States will remain bound by this ruling in applying the recast Dublin Regulation as well.