Cjeu case summaries
Article 27 of the Dublin Regulation III allows for an applicant to appeal the incorrect allocation of responsibility for a claim.
The lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1). In an appeal against a Dublin transfer which has suspensive effect the period listed in Articles 29(1) and (2) of the DR III does not start running until the final decision on that appeal.
A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims.
A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims.
In line with its case-law, the CJEU ruled that Article 67(2) TFEU and Articles 20 and 21 Schengen Borders Code must be interpreted as precluding national legislation allowing police authorities to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other Schengen states, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, unless that legislation lays down the necessary framework for that power ensuring that the practical exercise of it cannot have an effect equivalent to that of border checks.
These same provisions do not preclude national legislation that permits the police authorities to carry out, on board trains and on the premises of the railways, identity or border crossing document checks on any person, and briefly to stop and question any person for that purpose if those checks are based on knowledge of the situation or border police experience, provided that the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks.
Objective criteria to define a ‘risk of absconding’ must be established in a binding provision of general application. In the absence of that, Article 28(2) of the Dublin III Regulation is inapplicable and detention on this ground must be declared unlawful. The existence of case-law confirming a consistent administrative practice by domestic law-enforcement authorities does not suffice to conform to Article 28 of the Dublin III Regulation.
The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa.
Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.
If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.
It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.
Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.
The right to be heard does not require, as a rule, that, where national legislation provides for two separate procedures for examining applications for refugee status and applications for subsidiary protection, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place. However, an interview must be arranged where specific circumstances render it necessary in order to examine an application with full knowledge of the facts.
The CJEU in this case expanded on its previous ruling of B & D. Whereas previously the scope of the exclusion clause for those engaging in terrorist acts was limited to engaging in, conspiring to or planning an actual act of terrorism with an international dimension, the CJEU has now widened the scope to include those who provide logistical support even where no act of terrorism takes place.
Based on the principle of effectiveness, the CJEU ruled that a limit of 15 days to apply for subsidiary protection following a notification of the decision not to grant refugee status is particularly short and cannot be justified by the need to ensure an effective return procedure. The limited period endangers applicants’ ability to submit an application for subsidiary protection.