CJEU, L.R. v Bundesrepublik Deutschland C-8/20

Facts:

The case concerns the legality of a decision of the Federal Office for Migration and Refugees of Germany (“the Office”) that rejected the asylum application of L.R, an Iranian national, lodged on 22 December 2014 [Para 17]. After making an asylum application, it was revealed that L.R. had already submitted an asylum application in Norway on 1 October 2008 that had been rejected on 15 June 2009 [Paras 18-19]. The Office examined L.R.’s application and rejected it as inadmissible [Para 20]. The Office considered the application as a “second application” under the national asylum legislation and concluded that it doesn’t meet the conditions laid down in the Law on administrative procedure for the initiation of a further asylum [Para 20]. L.R. brought an appeal before the Administrative Court of Germany; seeking to clarify the possibility for the application to be considered as a subsequent application, that court referred the following question to the Court of Justice of the EU (CJEU): ‘Is a national provision according to which an application for international protection can be rejected as an inadmissible subsequent application compatible with Article 33(2)(d) and Article 2(q) of [Directive 2013/32] if the unsuccessful initial asylum procedure was not conducted in a Member State of the EU, but in Norway?’ [Paras  21-26].

Decision & reasoning:

1.       Examining ‘subsequent application’ under Directive 2013/32

The Court assessed whether the asylum application constitutes a ‘subsequent application’ under Article 2(q) and Article 33(2)(d) of Directive 2013/32 [Para 27].  Article 2(q) defines ‘subsequent application’ as a further application for international protection made after a ‘final decision’ has been taken on previous application [Para 34]. Referring to the Court’s case-law, the Court stated that Article 33(2) provides an exhaustive list of situations for Member States to consider an application for international protection inadmissible [Para 31]. Furthermore, the Court noted that the concept of an ‘application for international protection’ is defined in Article 2(b) of Directive 2013/32 as an application for protection ‘from a Member State’ made by a third-country national or a stateless person that seeks refugee status or subsidiary protection status, within the meaning of Directive 2011/95 [Para 36]. Therefore, it is clear from the wording of that provision that an application addressed to a third State cannot be understood as an ‘application for international protection’ or an ‘application’ within the meaning of that provision [Para 37].

As such, the ‘final decision’ is defined in Article 2(e) of Directive 2013/32 as a decision on whether third-country national or stateless person is to be granted refugee or subsidiary protection status by virtue of Directive 2011/95 [Para 38]. Directive 2011/95 is addressed to Member States, therefore, a decision taken by a third State cannot fall within that Directive’s definition of a decision [Para 39]. Moreover, the Directive is not limited to providing refugee status under the Geneva Convention, but also enshrines subsidiary protection status based on its recital 6 and complements the refugee status [Para 39]. As a result, the existence of a pervious decision of a third State, rejecting an application seeking the grant of refugee status, doesn’t permit the classification as a ‘subsequent application’ under Article 2(q) and Article 33(2)(d) of Directive 2013/32, of an application for international protection under Directive 2011/95 [Para 41].

2.       Agreement between the European Union, Iceland and Norway & Article 33(2)(d)

The Court confirmed that under Article 1 of the Agreement between the EU, Iceland and Norway, the Dublin III Regulation is to be implemented by Iceland and Norway [Para 43]. Consequently, in a situation where the person concerned made an application to be granted refugee status to one of those two third States, a Member State to which that person has made a further application for international protection may request the Republic of Iceland or the Kingdom of Norway to the back that person [Para 43]. Accordingly, where such taking back is not possible or doesn’t take place, the Member State is not entitled to regard the further application for international protection as a ‘subsequent application’ [Para 44]. The Court accepted that the Agreement provides for the implementation of certain provision of the Dublin III Regulation and that according to Article 1(4) references to ‘Member States’ in the provisions reproduced in the annex to that agreement are be understood to include those two third States [Para 45]. However, no provision of Directive 2011/95 or Directive 2013/32 is reproduced in that annex [Para 45]. Furthermore, the Court asserted that it is clear from the wording of Directive 2013/32 that a third State cannot be treated in the same way as a Member State for the purpose of applying Article 33(2)(d). Such a treatment cannot be affected by assessing the specific level of protection of asylum seekers in the third State concerned [Para 47].

Outcome:

Article 33(2)(d) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 2(q) thereof, must be interpreted as precluding legislation of a Member State which provides for the possibility of rejecting as inadmissible an application for international protection, within the meaning of Article 2(b) of that directive, made to that Member State by a third-country national or a stateless person whose previous application seeking the grant of refugee status, made to a third State implementing 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, in accordance with the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway – Declarations, had been rejected by that third State.