The Court of Justice of the European Union (CJEU) has delivered judgement in respect of the Ghezelbash and Karim cases, regarding the scope of the right to an effective remedy under the Dublin III Regulation. It has held that the Regulation must be construed as giving a right to asylum seekers to appeal decisions in cases where the appeal concerns the criteria for the determination as to which State holds responsibility for the processing of the application.
Mr Ghezelbash’s case centred on the issue of a ‘take back’ request. Under Dublin III, where an applicant enters into an asylum process in one EU Member State, having previously begun the process in another Member State, a take back request seeks to have the initial Member State take responsibility for the asylum process of that applicant. Mr Ghezelbash, an Iranian national, had had his processing request rejected in the Netherlands, following the acceptance of a take back request by France. He was subsequently able to produce evidence that he had returned to Iran from France for a period longer than three months which, under Dublin III, expires the time limit possible for a take back request. He therefore argued that the Netherlands were responsible for processing his application, as his asylum claim had been initiated there.
Authorities in the Netherlands requested a ruling from the CJEU as to whether the applicant had a right to an effective legal remedy to appeal against the Dublin III criteria being used to determine the Member State responsible for the processing of his application.
On this question, the Court found that the applicant holds a right under the regulation to be informed of the criteria used to determine the responsible Member State. Further it was held that the scope of the right to an effective remedy extends to encompass the right to suspend the transfer decision in respect of an applicant, pending the outcome of his or her appeal.
The Court held that the purpose of the relevant section of the regulation, beyond ensuring effectiveness of the system, was to improve the protection actually given to asylum seekers. It was held that the regulation actively involves asylum seekers in the process by conferring on Member States the obligation to inform applicants of the relevant criteria used to determine responsibility, and in order to guarantee the right to an effective remedy, to give opportunity to applicants in the process to provide information relevant to deciding this question of responsibility.
It was not accepted that allowing an appeal against the misapplication of the regulation would arduously add to the workload of the system, leading to “excessive delay”. Instead, the Court upheld a previous decision that the “EU legislature did not intend that the judicial protection enjoyed by asylum seekers should be sacrificed to the requirement of expedition in processing asylum applications”, prioritising justice over expedience. It was thus concluded that the right to effective remedy includes the entitlement to appeal a decision regarding the application of the Dublin III criteria for transferring responsibility.
The second case concerned a Syrian national, Mr Karim, whose asylum claim was similarly rejected following Slovenia’s acceptance of a take back request from Sweden. Mr Karim appealed the transfer decision, and Swedish authorities sought a preliminary ruling.
The Court found that as Mr Karim had been outside of Swedish jurisdiction for a period longer than three months, a new procedure for determining the responsible Member State had commenced. The Court referred to the Ghezelbash decision above, restating that Dublin III ensures the right of an asylum seeker to appeal a transfer decision made in respect of his or her application, as encompassed by the right to an effective remedy.
This judgement shows a departure from a previous Abdullahi judgement in 2013, where the Court indicated that the only effective remedy available to applicants would be in regard to “systemic flaws in the asylum procedure” concerning reception conditions which would result in a risk of inhuman or degrading treatment as under Article 4 of the Charter of Fundamental Rights.
Here it was decided that Article 27(1) of the 2013 Regulation, must be read in the light of recital 19 of same, and interpreted as ensuring the right of appeal against a decision to transfer an asylum seeker, centring on the incorrect application of one of the criteria for determining responsibility, and so falls within the scope of the right to an effective remedy.
Click here to read the full judgement.