Luxembourg - Administrative Tribunal, 38753, 13 January 2017
| Country of Decision: | Luxembourg |
| Country of applicant: | Gambia Mali , |
| Court name: | Administrative Tribunal, Fourth Chamber |
| Date of decision: | 13-01-2017 |
| Citation: | 38753 |
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
|
Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
Wishing to challenge his transfer to Germany from Luxembourg, the applicant appealed this decision and the court found that, on the basis of CJEU jurisprudence, all individuals had a right to contest the manner in which the Dublin III criteria are applied.
Facts:
The applicant applied for asylum on 20 September 2016 having breached a law concerning the fight against drug use of 30 July 2016. The hearing took place the same day.
The authorities discovered through EURODAC that the applicant had already applied for asylum in different countries, including Germany, who accepted to take responsibility of his application by letter on 07 November 2016.
The transfer was suspended because the applicant was in administrative detention at the time.
The applicant thus appealed the transfer decision.
Decision & reasoning:
Concerning the determining criteria for identifying the responsible State, the administrative tribunal founded its reasoning on the Ghezelbash case. In this case, the CJEU found that an individual that has applied for asylum has a right to appeal a decision made by that State in order to contest the manner in which the Dublin III criteria have been applied by the responsible State.
Outcome:
The administrative tribunal concluded that the appeal was unfounded as the cessation clause on which the applicant relied upon did not apply to the case: the applicant had not left the territory of the Member States for longer than three months as provided for in Art. 19(2) of the Dublin III Regulation. As such, the court upheld the transfer decision.
Observations/comments:
There are no new elements in the court’s reasoning. However, it is interesting how the court relied on CJEU jurisprudence to make asylum applicants’ right to appeal apparent.
As such, despite a relative silence on the part of national administrative jurisdictions regarding EU case-law, this decision shows the weight of CJEU case-law in an appeal.
The original version of this summary was written by Passerell a.s.b.l. and a translation completed by Jessica Pradille.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - o Law of 18 December 2015 : articles 28 (1) a) and 35 (a) |