CJEU - C‑63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie

Facts:

Mr Ghezelbash, an Iranian national, had his asylum claim in the Netherlands rejected following acceptance of a ‘take back’ request by France pursuant to Article 12(4) DRIII. After being informed of this, the applicant submitted circumstantial evidence in support of his claims that he had returned to Iran from France for over three months, and argued that the Netherlands was the responsible Member State (MS), as this was where he had lodged his first asylum claim.

The applicant appealed to the Rechtbank den Haag who granted interim relief and requested a ruling from the CJEU, inter alia, on whether the applicant is entitled to challenge France’s responsibility after France had accepted responsibility for the asylum application.   The questions referred to the CJEU are the following:

“(1)      What is the scope of Article 27 of Regulation No 604/2013, whether or not read in conjunction with recital 19 of that regulation?

Does an asylum seeker — in a situation such as that in the present case, in which the foreign national was confronted with the request for assumption of responsibility to deal with the asylum application only after that request had been agreed to, and that foreign national submits evidence, subsequent to the agreement to that request, which could lead to the conclusion that it is the requesting Member State, and not the requested Member State, which is responsible for examining the application for asylum, and the requesting Member State subsequently does not examine those documents or forward them to the requested Member State — have the right, pursuant to that article, to an (effective) legal remedy against the application of the criteria for determining the Member State responsible laid down in Chapter III of Regulation No 604/2013?

(2)      On the assumption that, under Regulation No 604/2013, or under the operation of Regulation No 343/2003, the foreign national is in principle not entitled to invoke the incorrect application of the criteria for determining the Member State responsible when the requested Member State has agreed to a request to take charge, is the defendant correct in its contention that an exception to that assumption may be contemplated only in the case of family situations as referred to in Article 7 of Regulation No 604/2013, or is it conceivable that there may also be other special facts and circumstances on the basis of which the foreign national may be entitled to invoke the incorrect application of the criteria for determining the Member State responsible?

(3)      If the answer to Question 2 is that, in addition to family situations, there are other circumstances which could lead to the foreign national being entitled to invoke the incorrect application of the criteria for determining the Member State responsible, can the facts and circumstances described in [paragraph 27 above] constitute such special facts and circumstances?”

Decision & reasoning:

Appeal against the incorrect application of the Chapter III criteria

As to determining the scope of Article 27(1) of the Dublin Regulation III the Court finds fault with analogies to Abdullahi which limited the challenge of a Member State’s responsibility to a real risk of Article 4 of the Charter. Noting that the recast Regulation differs considerably to Regulation 343/2003, applicable in Abdullahi, the Court finds that Article 27(1) must be interpreted in light of Dublin III’s wording, general scheme, objectives, context and evolution.

With regards to the wording the Court highlights that the legal remedy must be effective and due note is paid to the absence of limitations in the arguments that may be raised by the asylum seeker when availing himself of 27(1). The Court pays attention to the lack of a specific link between Article 27 and Article 3(2) of the Dublin Regulation III and proceeds to examine Recital 19, the first element of which ensures the review of the proper application of the Regulation. Indeed, read in conjunction Recital 19 and Article 27(1) of the Regulation are to ensure the correct application of the responsibility criteria in Chapter III.

As to the general scheme the Court notes that Dublin III has been characterised by the introduction or re-fortification of rights and mechanisms which guarantee the involvement of the asylum seeker in the determination process. Such rights stem from the right of the applicant to be informed of the determination criteria, the right to a personal interview or the opportunity to present further information relevant to the correct determination of the responsible Member State as well as the option to request the for the transfer decision to be suspended pending an appeal and legal assistance for the appeal. It therefore follows that Dublin III is not confined  to regulating inter-governmental relations between Member States but instead is intended to involve asylum seekers throughout the duration of the process.

With regards to the objectives of Dublin III the Court notes that effectiveness and protection afforded to applicants is central. If Article 27(1) were to be curtailed these dual objectives would be thwarted by virtue of the deleterious effect it would have on other rights conferred to asylum seekers within the Regulation. For example the opportunity for the asylum seeker to provide information as to the responsible Member State would be deprived of any practical effect if there was no opportunity to appeal an incorrect application of the determination criteria.

Regarding the context the Court notes that not only does such an appeal against the incorrect application of the criteria have no bearing on the principle of mutual trust but that argumentation regarding the delay in proceedings have little bearing given that judicial protection afford to asylum seekers should not be sacrificed for the benefit of expediting asylum applications, as found in Petrosian. In any case any delay is limited by the requirement and scrutiny of proof which should only be necessary for the proper application of the Regulation. Finally, any harmonisation argument cannot be used to advance an interpretation which limits the scope of 27(1).

In light of the above the Court found no reason to answer the second and third questions.

Outcome:

Article 27(1) 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, read in the light of recital 19 of the Regulation, must be interpreted as meaning that, in a situation such as that in the main proceedings, an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the Regulation.

Subsequent proceedings:

On remittance of the case back to the national courts, the Hague Regional Court on the 13 October 2016 quashed the decision taken by the national administration and upheld Mr Ghezelbash's appeal. The State subsequently appealed to the Council of State who ruled, on the 18 May 2017, that the documents which the applicant had relied upon to prove his return to Iran were not authentic and the internal inconsistencies presented in the applicant's statements demonstrated that the applicant had not left the territory of the Member States. The Council of State therefore allowed the Secretary of State's appeal and set aside the decision of the Hague Court. 

Observations/comments:

The Grand Chamber followed the reasoning of Advocate General Sharpston’s Opinion.

AG Sharpston considered that DRIII is aimed at establishing a clear, workable method for rapidly determining the MS responsible to enable the expeditious processing of asylum claims, but also aims to improve the legal protection for asylum applicants.

Recital 19 DRIII has two limbs, guaranteeing the right to an effective remedy against transfers covering ‘the application of the Regulation’ and the ‘legal and factual situation’ in the MS of transfer. The former must include the manner in which DRIII is applied, whilst the latter is now codified in Article 3(2).

Sharpston considered, relying on the principles of the right to defence and the right to be heard, that Article 27(1) confers the right of appeal against the application of the rules in DRIII, including the Chapter III allocation criteria, to the facts.