Practitioners will be well aware how intricate and complex the provisions of the Dublin III regulations are. Essentially, the Regulations are a piece of EU legislation which establish criteria for determining which member state is responsible for examining an asylum application. The main purposes are to prevent “asylum shopping” and reflects the guiding principle that a person seeking asylum should usually do so in the first safe country they reach.
For more on the background, history and criteria used in these types of cases, the Home Office guidance is really useful.
In this case, the key question was relatively straightforward: could a member state take a decision to transfer a person under Dublin III before the other member state had expressly or impliedly accepted the request to take that person back? The answer was a resounding no.
Mr Hassan, a citizen of Iraq, had travelled to Germany, where he claimed asylum. He then travelled to France where he was detained, and a decision was immediately made to transfer to Germany that same day. Mr Hassan brought proceedings in the Administrative Court in France and proceedings were stayed while the matter was referred to the Court of Justice.
The answer, said the Court of Justice, was simple. Article 26 of the Regulations clearly laid out a chronological procedure for when notification can be given to an applicant of their removal:
Where the requested Member State accepts to take charge of or to take back an applicant… the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible…
The problem is obvious. The notification can only be given where the member state has already accepted to take charge of or take back an applicant. So it appears the French authorities were putting the cart before the horse.
The Advocate General was particularly aggrieved at the practice of the French authorities in making “anticipated” Dublin removals.
The Court also said that a failure to wait for a response from the other member state to which a request was made to take back or take charge of an applicant, meant that the applicant did not have an effective remedy as required under the Dublin III. This was because Article 27 provided for an effective appeals procedure where it was agreed that another member state would take responsibility for an applicant’s asylum claim.
Removing the applicant prior to any decision from the other member state deprived him of any opportunity to appeal the transfer decision effectively (in circumstances where the lodging of an appeal would automatically suspend the removal).
In the UK, the Dublin III guidance makes it absolutely clear that only:
Upon acceptance, whether that is given actively by the requested State or is by default… the requested State becomes responsible for examining that claim.
There seems to be a recent trend in the Court of Justice whereby other member states end up litigating over matters which have never been a particular problem in the UK (which is quite amazing given how badly the UK implements EU law into national law). As I said in my previous piece from the Court of Justice, other EU countries (France in this case) seem to be stuck in their old ways. Presumably this decision now means their approach to such cases needs wholesale reform.
The Advocate General’s Opinion is not yet available in English. Once translated, it’ll be interesting to see the more nuanced arguments that were put forward by each side.