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Poland - Ruling of the Supreme Administrative Court from 28 June 2016 II OSK 1346/16 submitting the request for preliminary ruling to the CJEU and suspending the proceedings
Country of applicant: Unknown
Keywords: Effective access to procedures, Effective remedy (right to), Right to remain pending a decision (Suspensive effect)

The request for a preliminary ruling reads as follows: “Should Article 32 (3) of the Visa Code interpreted in light of Recital 29 of the preamble and Article 47 of the Charter be understood as creating an obligation for a Member State to guarantee the right to an effective remedy before a court?”

In the opinion of the Supreme Administrative Court the wording of Article 32 (3) of the Visa Code does not provide clarity as to whether the EU legislator intended to give the term “appeal” the meaning of any measure envisaged in national law or to give the right to an effective remedy before a respective court. If the CJEU, in the preliminary reference proceedings, states that the right to “appeal” should be exercised before a court, the national law excluding judicial control with regard to the Consulate’s decisions refusing the issuance of a visa would be contrary to Article 47 of the Charter, as well as the principle of equivalence and effectiveness.

Date of decision: 28-06-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 47,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Germany - Federal Administrative Court, 1 C 22.15, 27 April 2016
Country of applicant: Syria
Keywords: Right to remain pending a decision (Suspensive effect), Subsequent application, Inadmissible application, Responsibility for examining application, Request that charge be taken, Dublin Transfer, Request to take back, Residence document

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

Date of decision: 27-04-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 4,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 6,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 20,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 3,Article 7,Article 9,Article 13,Article 18,Article 21,Article 22,Article 23,Article 24,Article 25,Article 27,Article 29,Article 35,Article 49,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Austria – Supreme Administrative Court, 31 March 2016, Ra 2015/20/0231
Country of applicant: Iran
Keywords: Effective remedy (right to), Right to remain pending a decision (Suspensive effect), Inadmissible application, Responsibility for examining application, Dublin Transfer, Request to take back

The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:

Are the provisions 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 1 that confer the right to an effective remedy against a transfer decision, in particular Article 27(1), to be interpreted as meaning that an applicant for asylum is entitled to claim that responsibility has been transferred to the requesting Member State on the ground that the six month transfer period has expired (Article 29(2) in conjunction with Article 29(1) of Regulation No 604/2013 in light of the 19th recital)?
 
If the answer to Question 1 is in the affirmative:
 
Does the transfer of responsibility under the first sentence of Article 29(2) of Regulation No 604/2013 occur by the fact of the expiry of the transfer period without any order or, for responsibility to be transferred because the period has expired, is it also necessary that the obligation to take charge of, or to take back, the person concerned has been refused by the responsible Member State?
Date of decision: 31-03-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 4,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 10,Article 17,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Recital (19),Article 13,Article 17,Article 18,Article 22,Article 25,Article 27,Article 29,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Netherlands - Court of The Hague, 13 January 2016, AWB 15/22376
Country of applicant: Iran
Keywords: Effective access to procedures, Detention

This case is concerned with whether an appeal against the lawfulness of an asylum applicant’s detention was allowed. Thus the prejudicial question was formulated questioning whether the measure under article 8(3)(a-b) recast Reception Conditions Directive is valid with regards to the provisions in Article 6 Charter of Fundamental Rights of the EU (CFREU) subject to Article 5 European Convention on Human Rights (ECHR).

Date of decision: 13-01-2016
Relevant International and European Legislation: European Union Law,Council of Europe Instruments,EN - Charter of Fundamental Rights of the European Union,Article 6,Article 52,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 2,Article 9,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 5,EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013,Article 2,Article 8,Article 9,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
CJEU - C-166/13, Sophie Mukarubega v Préfet de police, Préfet de la Seine-Saint-Denis

This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.

It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision. 

Date of decision: 05-11-2014
Relevant International and European Legislation: Article 41,Article 47,Article 48,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 3,Article 6,Article 7,Article 12,Article 13,Article 14,Article 267 § 2,Article 267 § 1 (b)
Germany – Federal Court of Justice by order of 26 June 2014, V ZB 31/14
Country of applicant: Pakistan
Keywords: Detention

Section 62 subsection 3 first sentence No. 5 of the German Act of the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act) does not comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013 which defines ‘risk of absconding’ as the existence of reasons in an individual case, which are based on objective criteria defined by law. Section 62 subsection 3 first sentence No. 5 of the Residence Act names ‘risk of absconding’ as a reason for detention but lacks the required objective criteria to determine the existence of the ‘risk of absconding’. Therefore according to the current legal situation in Germany detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 cannot be based on the detention reason ‘risk of absconding’.

The detention reasons named in Section 62 subsection 3 first sentence No. 2 and No. 3 of the Residence Act comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013. Detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 can be based on these provisions.

Date of decision: 26-06-2014
Relevant International and European Legislation: European Union Law,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 16,Article 20,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 2,Article 28,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)