CJEU, H. A. v Etat belge C-194/19

Facts:

The issue before the Court concerns the interpretation of Article 27 of Regulation (EU) No 604/2013 and Article 47 the Charter of Fundamental Rights of the European Union (‘the Charter’). The request has been made in proceedings between H.A., a third-country national, and Belgian State concerning the decision of Belgian Immigration Office that rejected H.A.’s application for asylum and ordering him to leave Belgian territory.

H. A. made an application for asylum in Belgium on 22 May 2017, but the Immigration Office asked the Spanish authorities to take charge of the application [Paras 10-11]. As the Spanish authorities accepted the request, the Immigration Office rejected the asylum application on 1 August 2017 and ordered him to leave the territory of Belgium [Paras 12-13].  H. A. challenged the decision before the Council for asylum and immigration (CCE) claiming that his brother had arrived in Belgium on 22 August 2017 and had lodged an asylum application there, and that it was essential that their applications be examined together to ensure the fairness of the procedure [Para 14]. The CCE dismissed the action arguing on the basis that the circumstances relating to the arrival of H. A.’s brother in Belgium arose after the adoption of the disputed decision of the immigration Office and hence cannot be considered in assessing the lawfulness of the decision [Para 15].

H. A. lodged an appeal before the Council of State of Belgium (the referring court) claiming that CCE infringed his right to an effective remedy based on Article 27 of Dublin III Regulation and Article 47 of the Charter [Para 16]. The Council of State decided to stay the proceedings and requested a preliminary ruling on the following question [Para 17]:

‘must Article 27 of [the Dublin III Regulation], considered alone or in conjunction with Article 47 of the [Charter], be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a “Dublin transfer” decision?’

Decision & reasoning:

Examining the court action to consider subsequent circumstances for annulment of a transfer decision under Article 27(1) of Dublin III Regulation and 47 of the Charter

The Court asserted that Article 27(1) of the Dublin III Regulation provides the right to an effective remedy to a person who is the subject of a transfer decision, in the form of an appeal or a review and in fact and in law, before a court or tribunal [Para 32]. The scope of the remedy is explained in recital 19 of the Dublin III Regulation as covering (1) the examination of the application of that regulation; and (2) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred [Para 33]. As such, relying on Shiri C-201/16 and H. and R. C-582/17, the Court provided that in the light of objectives and the developments that have taken place in relation to the adoption of the Dublin III Regulations for determining the Member State responsible for examining an application for international protection, Article 27(1) must be interpreted as to provide a remedy that is capable of relating both observance of the rules attributing responsibility for examining application for international protection and to the procedural safeguards laid down by that regulation [Para 34]. Moreover, the Court stated that pursuant to recital 19 in accordance with Article 47 of the Charter and recital 5, the applicant must have an effective and rapid remedy that would enable him or her to rely on circumstances subsequent to the adoption of the transfer decision, where the consideration of such circumstances is decisive for the correct application of the regulation [Para 35].

The Court asserted that, although Article 27 of the Dublin III Regulation specifies the subject matter of the remedy, it does not clarify whether the right to a remedy means that the court or tribunal seised may carry out an ex nunc examination of the lawfulness of the transfer decision [Paras 39-40. The Court further stated that the wording of Article 27 is different from Article 46(3) of Directive 2013/32 which provides that the effective remedy available against the acts referred in Article 46(1) of that directive, which do not include transfer decision, suggests for a “full and ex nunc examination of both facts and points of law’ [Para 41].

Recalling the Court’s case-law, the Court stated that in the absence of EU rules on the matter, it is for the Member States to establish procedural rules for actions to safeguard the rights of individuals pursuant to the principle of procedural autonomy [Para 42]. However, the Court also provided that such rules should not be less favourable than those governing similar domestic situations (principle of equivalence) and should not make it excessively difficult or impossible, in practice, to exercise the rights granted by EU law (principle of effectiveness) [Para 42]. 

Furthermore, when Member States implement EU law, they must ensure compliance with the right to an effective remedy under Article 47(1) of the Charter that reaffirms the principle of effective judicial protection [Para 43].  Consequently, a specific remedy must ensure that that person has the opportunity to prevent the competent authorities of the requesting Member State from being able to carry out the transfer of that person to another Member State, where the emerging circumstances after the transfer decision preclude the implementation of that decision [Para 47]. Also, the remedy should ensure that the competent authorities of the requesting Member State, if responsible, initiate a rapid examination of the application for international protection lodged by that individual [Para 47]. Finally, it must be possible for the particular remedy to consider circumstances subsequent to the adoption of the transfer decision that are decisive for the correct application of the Dublin III Regulation to be exercised after such circumstances have arisen [Para 48]. However, such exercise should not be made conditional on the person concerned having been deprived of his or her liberty or on implementation of the relevant transfer decision being imminent [Para 48].

Outcome:

Article 27(1) of Dublin III Regulation read in the light of recital 19 thereof, and Article 47 of the Charter precludes a national legislation which provides that the court or tribunal seised of an action for annulment of a transfer decision may not take account of circumstances subsequent to the adoption of that decision which are decisive for the correct application of that regulation, unless that legislation provides for a specific remedy entailing an ex nunc examination of the situation of the person concerned, a remedy which may be exercised after such circumstances have arisen and which, in particular, is not made conditional on the deprivation of that person’s liberty or on the fact that implementation of that decision is imminent.