OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 14 September 2023 (1)
Case C‑359/22
AHY
v
Minister for Justice
(Request for a preliminary ruling
from the High Court (Ireland))
(Reference for a preliminary ruling – Asylum policy – Determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 – Article 17(1) – Sovereignty clauses – Article 27 – Effective remedy – Suspensive effect)
1. This request for a preliminary ruling from the High Court (Ireland) concerns the interpretation of Article 17(1) and Article 27(1) and (3) of Regulation (EU) No 604/2013 (‘the Dublin III Regulation’), (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2. The background to the questions referred is the special legal regime currently in force in Ireland which transposes the Dublin III Regulation into Irish law. Under that regime, the decision of a Member State to use, or not to use, the sovereignty clause contained in Article 17(1) of the Dublin III Regulation is the responsibility of an administrative authority different from the one responsible for applying the criteria for determining the Member State responsible set out in that regulation and for adopting the transfer decision. Similarly, the legal remedies provided for against the first and second decisions fall within the jurisdiction of two different national courts.
3. The coexistence of those two procedures, together with the lack of coordination between them, raises complex legal issues in the context of the Dublin III Regulation. In its forthcoming judgment, the Court will thus have the opportunity to provide clarifications on the scope of the right to an effective remedy as provided for in Article 27 of that regulation, in particular on the question as to whether one of the two aforementioned provisions requires Member States to provide for the possibility of bringing legal proceedings to challenge, by means of an appeal separate to that brought against the transfer decision, the exercise of the discretion stemming from the sovereignty clause. In addition, it is called upon to rule on whether the introduction of such an appeal necessarily leads to the suspension of the transfer decision.
I. Legal context
A. European Union law
4. Article 3(1) of the Dublin III Regulation provides:
‘Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.’
5. Article 17 of that regulation, headed ‘Discretionary clauses’, provides in paragraph 1 thereof:
‘1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the “DubliNet” electronic communication network set up under Article 18 of [Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 222, p. 3)], the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.
The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with [Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of “Eurodac” for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 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 and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180, p. 1)] by adding the date when the decision to examine the application was taken.’
6. Article 27 of that regulation, headed ‘Remedies’, is worded as follows:
‘1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
2. Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.
3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:
(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or
(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or
(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.
4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.’
7. Article 29(1) and (2) of that regulation provides:
‘1. The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).
If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.
If necessary, the applicant shall be supplied by the requesting Member State with a laissez passer. The Commission shall, by means of implementing acts, establish the design of the laissez passer. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).
The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the person concerned or of the fact that he or she did not appear within the set time limit.
2. Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.’
B. Irish law
1. European Union (Dublin System) Regulations 2018
8. Article 3 of the European Union (Dublin System) Regulations 2018 (S.I. No 62/2018) (‘the 2018 regulations’), headed ‘Performance of functions under the EU Regulation’, confers on international protection officers (officers forming part of the International Protection Office (Ireland); ‘the IPO’) the functions of determining the Member State responsible for examining an application for international protection in accordance with the criteria set out in Chapter III of the Dublin III Regulation and for adopting transfer decisions. Article 6 of the 2018 regulations, headed ‘Appeal against a transfer decision’, provides that the International Protection Appeals Tribunal (Ireland) (‘the IPAT’) has jurisdiction to examine an appeal against a transfer decision.
9. Article 8 of the 2018 regulations, headed ‘Suspension of implementation of transfer decision pending outcome of appeal’, establishes the suspensive effect provided for in Article 27(3)(a) of the Dublin III Regulation, and provides, in essence, that an applicant for international protection who appeals under Article 6 of the 2018 regulations is entitled to remain in the State pending the outcome of the appeal.
10. The exercise of the discretion provided for in Article 17(1) of the Dublin III Regulation falls within the competence of the Minister for Justice (‘the Minister’). The procedure leading to a transfer decision being taken by the IPO under the 2018 regulations does not involve any consideration of Article 17(1) of that regulation, and the jurisdiction of the IPAT under Article 6 of the 2018 regulations is limited to appeals against such transfer decisions. That court does not have jurisdiction to rule on appeals against a decision of the Minister as to the exercise of discretion under Article 17(1) of the Dublin III Regulation, the only possible appeal against such a decision being a challenge by way of judicial review.
2. Order 84, Superior Courts Rules
11. Order 84, Superior Courts Rules, sets out, specifically in Title V, the rules applicable in the context of proceedings by way of judicial review. The High Court is the court of first instance to hear appeal proceedings by way of judicial review. Accordingly, any reference to the court in Order 84 refers to the High Court, as the court of first instance.
12. Rule 20 of Order 84 states, in essence, that an application for leave must be granted before the court hears an application for judicial review and that the court will only grant leave if the applicant has a sufficient interest in the matter. Rule 21 of Order 84 fixes a three-month time limit to apply to the court, but that period may be extended, in particular if there is a good and sufficient reason for doing so.
13. Order 84 does not provide for suspensive effect. Rule 20(8)(b) of Order 84 provides that where leave to apply for judicial review is granted then the court, should it consider it just and convenient to do so, may, where the relief sought is an order of prohibition or certiorari (an order to set aside an administrative decision), make an order suspending the effects of the decision to which the application relates until the determination of the application for judicial review or until the court otherwise orders.
II. Facts, procedure and questions referred
14. The applicant in the main proceedings, AHY, is a Somalian national born on 21 October 1987.
15. On 21 January 2020, he applied for international protection in Ireland on the basis that he had been subject to a bomb attack in Somalia which destroyed his shop, killed one of his employees and left him with scars on his hands and arm.
16. A Eurodac search showed that he had already made two applications for international protection in Sweden on 5 November 2012 and 2 October 2017. Those applications were refused.
17. The Irish authorities therefore made a take back request to the Kingdom of Sweden under Article 18(1)(b) of the Dublin III Regulation. Sweden agreed to accept responsibility on 19 February 2020.
18. On 23 July 2020, a notice of decision of transfer to Sweden was issued to AHY, who challenged that decision before the IPAT requesting the application of the clause contained in Article 17(1) of the Dublin III Regulation and claiming, in particular, that he suffered from depression.
19. The IPAT dismissed that appeal on 5 October 2021 and upheld the transfer decision.
20. On 8 November 2021, AHY was requested to report to the Garda National Immigration Bureau (Ireland) on 16 December 2021 to make arrangements for his transfer to Sweden not later than 6 April 2022.
21. On 15 November 2021, he made an application to the Minister requesting that the Minister exercise the discretion conferred under Article 17 of the Dublin III Regulation on the basis, in particular, of a risk of suicide in the event of such a transfer. To that effect, AHY provided a medical-legal report indicating that he would be at high risk of self-harm and possible suicide if he were transferred to Sweden. During the proceedings, he submitted a second medical-legal report indicating that the risk of suicide was higher than that described in the first report.
22. On 16 February 2022, the applicant’s request for the exercise of the discretion under Article 17 of the Dublin III Regulation was refused.
23. Following the second medical-legal report, the Minister added an addendum to the decision refusing to exercise that discretion, noting that the second medical-legal report had not led to a change in the outcome of the decision.
24. AHY challenged that decision before the referring court by way of judicial review. He claims, in particular, that, pursuant to Article 27 of the Dublin III Regulation, appeals against decisions refusing a request for the exercise of the discretion provided for in Article 17 of that regulation have automatic suspensive effect.
25. The referring court confirmed and extended the interim measures obtained by AHY in December 2021 prohibiting his transfer to Sweden and decided to make a reference to the Court of Justice for a preliminary ruling.
26. In that context, the referring court raises the question, in particular, of the suspensive effect that an appeal against a decision of the Minister refusing to exercise the discretion conferred by Article 17 of the Dublin III Regulation may have on a transfer decision, in particular where the latter has already been the subject of an appeal under Article 27(1) of that regulation.
27. In those circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a “transfer decision” pursuant to the provisions of [Article] 27(1) of [the Dublin III Regulation] encompass the right to such an effective remedy against a decision made by the Member State under Article 17(1) of the Dublin III Regulation as to the exercise of its discretion under Article 17(1) as to whether it should examine the international protection application lodged with it by a third-country national or a stateless person even if such examination is not its responsibility under the criteria laid down in the Dublin III Regulation?
(2) If the answer to question 1 is “yes”:
(a) Does it follow that a requesting Member State is precluded from implementing a transfer decision pending the determination of an applicant’s request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?
(b) Do the provisions of Article 27(3) [of the Dublin III Regulation], which require Member States to provide in their national law for one of three forms of suspensive effect for the purposes of appeals against or reviews of transfer decisions, include a challenge to a decision under Article 17(1) refusing to exercise the option of assuming responsibility for an international protection application …?
(c) Where no specific national law provides for one of the three forms of suspensive effect in Article 27(3) in the event of a challenge to an Article 17 refusal decision, are the courts on such a challenge obliged to grant suspensive effect in one of those three forms in its national law and, if so, which one?
(d) Must each and all of the suspensive remedies under Article 27(3) be interpreted to operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of the Dublin III Regulation?
(3) If the answer to question 1 is “no”:
(a) Does the right to an effective remedy under Article 47 of the [Charter] preclude a requesting Member State from implementing a transfer decision pending the determination of an applicant’s request for the exercise of discretion under Article 17(1) of the Dublin III Regulation?
(b) Does the right to an effective remedy under Article 47 of the [Charter] preclude a requesting Member State from implementing a transfer decision pending the determination of a challenge by way of judicial review brought under the provisions of national law to an Article 17 refusal decision?
(c) Alternatively, does a challenge by way of judicial review brought under the provisions of national law to an Article 17 [of the Dublin III Regulation] refusal decision operate as a stay on the time limit for the implementation of a transfer decision under Article 29(1) of the Dublin III Regulation or otherwise have suspensive effect on the transfer decision[?]’
28. The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
29. In support of its request, the referring court relied on AHY’s state of health, stating, in particular, that it was concerned, in the light of the medical evidence available to it, by the fact that the length of the ordinary preliminary reference procedure could constitute a real risk to his health, or even his life, if he were to develop suicidal thoughts following the decision to transfer him to Sweden. The referring court also stated that the urgency was heightened by the fact that the legal issues raised in the present case also arise in a series of other ongoing cases. The legal uncertainty as to the review of decisions refusing to make use of the clause set out in Article 17(1) of the Dublin III Regulation and as to the suspensive effect of appeals against such decisions would have a systemic impact on the functioning of the system established by that regulation in Ireland and would cause delays.
30. At the administrative meeting on 21 June 2022, the Second Chamber decided not to grant the request of the referring court.
31. In the context of the ordinary preliminary reference procedure, written observations were submitted by AHY, the Minister, Ireland and the Greek Government, and the European Commission.
III. Analysis
32. As a preliminary point, it should be observed that the questions referred for a preliminary ruling in the present case, which relate to the judicial review of a decision adopted by the authorities of the Member States pursuant to the clause set out in Article 17(1) of the Dublin III Regulation, and to the possible suspensive effect, with regard to the transfer decision, of an appeal brought against that decision, are based, according to the referring court, on two sets of considerations.
33. The first relates to the specific features of the Irish system, in which the decision whether or not to proceed with the transfer of an applicant for international protection and whether or not to exercise the discretion conferred under Article 17(1) of the Dublin III Regulation do not fall within the competence of the same authority. While the first is taken by the IPO, the second falls within the powers of the Minister. Furthermore, appeals against transfer decisions must be brought before the IPAT, and that court does not have, by contrast, jurisdiction to rule on an appeal against a decision of the Minister as to the exercise of that discretion. Such a decision can be challenged only by way of judicial review before the High Court.
34. It is also apparent from the order for reference that, as Irish law currently stands, those two separate procedures can be activated at different times without coordination, in particular as concerns time limits. There is therefore nothing that prevents an applicant for international protection who is the subject of a transfer decision in Ireland from submitting an application under Article 17 of the Dublin III Regulation after his appeal against that transfer decision has been dismissed by the IPAT. This happened in the present case and, according to the available sources, in many other cases.
35. The second argument concerns the questions raised by the judgment in M.A. and Others, (3) in which the Court ruled on the specific features of the Irish system in circumstances different to those at issue in the present case. The referring court refers to the difficulties in determining the exact scope of the reasoning and decision of the Court in that judgment.
A. The first question referred
36. By its first question, the referring court asks, in essence, whether Article 27(1) of the Dublin III Regulation must be interpreted as meaning that it requires Member States to make provision for an effective remedy against a decision of the Member State to exercise, or refuse to exercise, its discretion to assume, under Article 17(1) of that regulation, responsibility for examining an application for international protection where that examination is its responsibility under the criteria laid down in that regulation.
37. The Court’s response will determine, according to the referring court, whether the issue of the suspensive effect of a challenge by way of judicial review provided for by Irish law and pending in the case in the main proceedings must be examined in the light of Article 27(3) of the Dublin III Regulation (second set of questions) or Article 47 of the Charter (third set of questions).
38. In order to illustrate my position, I will proceed as follows. First, I shall set out the elements that make up the content of the clause contained in Article 17(1) of the Dublin III Regulation (Section 1). Then, I shall examine the case-law on the right to an effective remedy enshrined in Article 27(1) of that regulation, in order to determine whether it encompasses the right to a remedy against the decision to make use, or not, of the clause contained in Article 17(1) of that regulation (Section 2). Lastly, the interpretation thus made will be tested in the light of the lessons to be drawn from the judgment in M.A. and Others (Section 3), so as to provide an answer to the first question referred (Section 4).
1. The clause contained in Article 17(1) of the Dublin III Regulation
39. It should be borne in mind at the outset that the aim of the Dublin III Regulation is to lay down 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.
40. The system established by that regulation is based on the principle, set out in Article 3(1) thereof, that a single Member State is competent to examine the applicant’s need for international protection.
41. To that end, Chapter III of that regulation establishes a hierarchy of objective and fair criteria both for the Member States and for the persons concerned. (4) Such criteria, set out in Articles 8 to 15 of that regulation, seek to establish a clear and effective method making it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection. (5)
42. Chapter IV of the Dublin III Regulation includes, in addition to Article 16 concerning dependant persons, Article 17, headed ‘Discretionary clauses’. Article 17(1) provides that, by way of derogation from Article 3(1) of that regulation, a Member State may decide to examine an application for international protection even if such examination is not its responsibility under the criteria laid down in the Dublin III Regulation.
43. That provision is essentially based on three characteristics.
44. First, it provides an element of flexibility to the legal regime concerned. Article 17(1) of the Dublin III Regulation reproduces the ‘sovereignty’ clause which was contained in Article 3(2) of Regulation (EC) No 343/2003 (‘the Dublin II Regulation’), (6) and, previously, in Article 3(4) of the Dublin Convention. (7) If that clause has survived all the legislative reforms carried out by the European Union in that field, it is because it reflects the principle, stemming from international law and, in particular, the Geneva Convention relating to the Status of Refugees, (8) that the recognition of the right to asylum is a State prerogative. (9) In other words, States must have, according to that principle, the right to examine the substance of all applications for asylum submitted to them.
45. Second, the placement of the sovereignty clause within Chapter IV of the Dublin III Regulation demonstrates its autonomous nature in relation to the criteria set out in Chapter III of that regulation.
46. Third, and above all, in that clause the Member States are granted broad discretion. As the case-law has repeatedly recognised, it is an option (‘each Member State may decide to examine an application of international protection lodged with it by a third-country national or a stateless person …’), (10) and there are no specific requirements for applying that clause. It is for each Member State, according to the Court, to determine the circumstances in which it wishes to make use of that power and to decide itself to examine an application for international protection for which it is not responsible under the criteria laid down in the Dublin III Regulation. (11)
47. As proved by the Commission’s proposal that led to the adoption of the Dublin II Regulation, (12) the clause in question was introduced in order to allow each Member State to decide sovereignly, for political, humanitarian or practical considerations, to agree to examine an application for asylum even if it does not have the responsibility to do so. (13)
48. Any arguments that the particular circumstances of the case had the effect of limiting the discretion of the Member State in question to such an extent as to give rise to an obligation on the part of that Member State to invoke the sovereignty clause have so far been rejected by the Court. (14)
49. In particular, it is apparent from the Court’s case-law that that clause is not intended as a safeguard against any malfunctions of the Dublin System which may lead to violations of the fundamental rights of applicants for international protection. (15)
50. It should be borne in mind, in that regard, that that system is based on mutual trust, including a presumption of observance, by other Member States, of fundamental rights. Such trust is undermined in two situations.
51. The first is the situation in which there are serious reasons to believe that there are systemic flaws in the asylum procedure and reception conditions for applicants in the Member State primarily designated as responsible which could lead to a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. While that situation has the result that, where it is impossible to identify another Member State responsible, the determining Member State itself becomes the Member State responsible, such an obligation arises from Article 3(2), second and third subparagraphs, of the Dublin III Regulation, and not from exercising the sovereignty clause. The second is the situation in which there is a real risk of exposing the applicant for international protection, by virtue of his or her state of health, to inhuman or degrading treatment within the meaning of Article 4 of the Charter. In the judgment in C. K. and Others, (16) the Court held that, although that risk may justify suspending the enforcement of the transfer decision, it does not mean that the requested Member State is required to declare itself responsible for examining the application pursuant to the sovereignty clause.
52. In summary, while the requirement to protect fundamental rights may oblige the requested Member State to disregard, at least provisionally, the criteria set out in Chapter III of the Dublin III Regulation, that requirement cannot compel the Member States to exercise the power, conferred by Article 17(1) of that regulation, to examine itself an application for international protection. It follows that the situation in which the protection of fundamental rights justifies disregarding the criteria laid down by the Dublin III Regulation is a separate matter from the exercise of the sovereignty clause. More recently, in the judgment in M.A. and Others, the Court reiterated its position by stating that taking the best interests of the child into account cannot oblige a Member State to make use of that clause and to examine itself an application for which it is not responsible.
53. Lastly, it should be added that it is apparent from the case-law that even situations of humanitarian crisis in certain Member States, such as that which occurred in the Western Balkans between the end of 2015 and the beginning of 2016, cannot create an obligation for the other Member States to make use of the sovereignty clause with regard to applications for international protection lodged with them, the Court having nonetheless made a point of emphasising that the exercise of the power to make use of that clause would, in such a case, comply with the principle of solidarity enshrined in Article 80 TFEU and underlying the Dublin III Regulation. (17)
2. Right to an effective remedy under the Dublin III Regulation
54. Article 27(1) of the Dublin III Regulation provides that the applicant for international protection has the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
55. The scope of the remedy open to the applicant for international protection against a decision to transfer him or her is explained in recital 19 of the Dublin III Regulation, which states that, in order to ensure compliance with international law, the effective remedy introduced by that regulation in respect of transfer decisions must cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the applicant is to be transferred. (18)
56. As regards the subject of the assessment of the application of the regulation in question, the Court has restated many times the broad interpretation resulting from the line of reasoning in the judgment of 7 June 2016, Ghezelbash (C‑63/15, EU:C:2016:409; ‘the judgment in Ghezelbash’).
57. That reasoning was based on two essential considerations. First, the EU legislature decided, through the adoption of the Dublin III Regulation, to involve asylum seekers in the process for determining the responsible Member State by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process. Second, the Dublin III Regulation aims to improve the protection afforded to applicants under that system, to be achieved, inter alia, by the judicial protection enjoyed by asylum seekers.
58. According to the Court, a restrictive interpretation of the scope of the remedy provided for in Article 27(1) of the Dublin III Regulation might therefore thwart the attainment of that objective by depriving the other rights conferred on asylum seekers by that regulation of any practical effect. (19)
59. The Court thus concluded first and foremost, in the judgment in Ghezelbash, that an asylum seeker is entitled to rely, in an appeal against a decision to transfer him or her, on the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Dublin III Regulation. In subsequent judgments, the Court has also acknowledged that the same asylum seeker may also rely on the infringement of provisions in other chapters of the Dublin III Regulation that grant procedural guarantees on asylum seekers.
60. In the judgment in Karim, (20) it was held that one of those provisions is the second subparagraph of Article 19(2) of that regulation, according to which, where the third-country national, after having made a first asylum application in a Member State, left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State, the latter was required to complete the process for determining the Member State responsible for examining that new application.
61. In the judgment in Mengesteab, (21) it was found that another such provision is Article 21(1) of the Dublin III Regulation, according to which, where a request to take charge of an applicant is not made within the periods laid down therein, responsibility for examining the application for international protection is to lie with the Member State in which the application was lodged. In the judgment in Shiri, (22) the Court also included in the category in question Article 29(2) of the Dublin III Regulation, pursuant to which, where the transfer from the requesting Member State to the Member State responsible does not take place within the time limit laid down in that article, the Member State responsible is to be relieved of its obligations to take charge or to take back the person concerned and responsibility is then to be transferred to the requesting Member State.
62. In that case-law, it seems to me that the Court attached decisive weight to the fact that each of the provisions examined establishes the framework within which the process of determining the Member State responsible takes place and also contributes, in the same way as the criteria set out in Chapter III, to determining the responsible Member State. (23)
63. It follows, in my view, that the scope of the effective remedy provided for in Article 27(1) of the Dublin III Regulation against a transfer decision covers the examination of the application of those provisions on the ground that they lay down rules which, by virtue of their binding nature on the Member State concerned, are such as to confer on the applicant for international protection a right to have his or her application examined by the Member State responsible.
64. That is not the case with Article 17(1) of the Dublin III Regulation, on the ground that the activation of the sovereignty clause provided for therein is, as explained above, merely optional. (24)
65. It must therefore be concluded that the right to an effective remedy established in Article 27(1) of that regulation does not include the right to challenge the refusal to make use of the sovereignty clause by the Member State in which the application for international protection was lodged.
66. In my view, that analysis is not called into question by the judgment of 1 August 2022, Staatssecretaris van Justitie en Veiligheid (Refusal to take charge of an Egyptian unaccompanied minor) (C‑19/21, EU:C:2022:605).
67. Admittedly, the Court held in that judgment that the applicant for international protection must be able to exercise a judicial remedy, pursuant to Article 27 of that regulation, not only where the requesting Member State adopts a transfer decision, but also where the requested Member State refuses to take charge of the person concerned. However, that broad interpretation by the Court was made possible by the fact that the lawfulness of the decision refusing the applicant’s take charge request had been challenged with regard to one of the criteria for determining responsibility laid down in Chapter III of that regulation. That can be seen explicitly in the paragraph from the judgment worded as follows: ‘the judicial protection of an unaccompanied minor applicant cannot vary, as regards compliance with the binding responsibility criterion set out in Article 8(2) of the Dublin III Regulation, depending on whether that applicant is the subject of a transfer decision, taken by the requesting Member State, or of a decision by which the requested Member State refuses the request to take charge of that applicant’. (25) I infer from this that the decision refusing to make use of the sovereignty clause is not one of the decisions covered by the right to an effective judicial remedy provided for in Article 27(1) of the Dublin III Regulation.
3. The scope of the judgment in M.A. and Others
68. I take the view that the following interpretation is fully compatible with the judgment in M.A. and Others.
69. The referring court refers, in particular, to two parts of the judgment.
70. First, the Court held that the discretion conferred on Member States by the sovereignty clause is an integral part of the mechanisms for determining the Member State responsible developed by the EU legislature. (26)
71. Second, the Court ruled on the same issue as the one forming the subject matter of the first question referred for a preliminary ruling. In that regard, it found first of all that Article 27(1) of the Dublin III Regulation does not expressly provide for an appeal against the decision not to use the option set out in Article 17(1) of that regulation, and that the objective of the rapid determination of the Member State responsible, underlying the procedure established by the Dublin III Regulation, discourages multiple remedies. (27) Next, the Court stated that it is true that Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. (28) However, if a Member State refuses to use the sovereignty clause, that necessarily means that that Member State must, according to the Court, adopt a transfer decision and that refusal to use that clause may, should the case arise, be challenged at the time of an appeal against a transfer decision. (29) Accordingly, the Court concluded that Article 27(1) of the Dublin III Regulation must be understood as meaning that ‘it does not require a remedy to be made available against the decision not to use the option set out in Article 17(1) of that regulation, without prejudice to the fact that that decision may be challenged at the time of an appeal against a transfer decision’. (30)
72. It should be conceded that the Court’s reasoning is not easy to follow and that the doubts expressed by the referring court are therefore not surprising. The referring court seems to favour a reading – AHY and the Commission share this view in their written observations – that, in so far as Article 17 of the Dublin III Regulation is an integral part of the mechanisms for determining the Member State responsible, the right to an effective remedy against a transfer decision provided for in Article 27(1) of that regulation must also include the right to an effective remedy against a decision taken under Article 17(1) of that regulation.
73. I take the view that there is hardly any doubt that that interpretation is incorrect.
74. It should be observed at the outset that, in the case giving rise to the judgment in M.A. and Others, the applicants had not requested that the Minister apply the sovereignty clause in their regard following the adoption of the transfer decision. By contrast, the Office of the Refugee Applications Commissioner (Ireland) had recommended their transfer to the United Kingdom after having refused to use that clause. It follows that the Court’s response is necessarily based on the premiss that such a refusal occurs before the adoption of the transfer decision. (31) In respect of that situation, the Court held, in essence, that the requirements inherent in the principle of effective judicial protection are satisfied by the fact that that refusal may be challenged at the time of an appeal against a transfer decision.
75. In my opinion, it would be incorrect to infer a contrario from this, like AHY and the Commission, that, if the decision not to use the sovereignty clause was taken after the adoption of the transfer decision, those same requirements make it essential that a separate appeal exists against the first decision. That reading could be difficult to reconcile with the literal and teleological considerations set out in the first paragraphs of the Court’s answer to that question referred for a preliminary ruling, according to which, respectively, Article 27(1) of the Dublin III Regulation does not expressly provide for an appeal against the decision not to use the sovereignty clause, and the objective of rapid processing with regard, in particular, to the determination of the Member State responsible discourages multiple remedies.
76. Moreover, the wording of paragraph 79 of the judgment in question, as set out above, must be understood as meaning that a specific remedy against the decision of a Member State refusing to exercise the discretion conferred on it by the sovereignty clause is not, as a general rule, required by Article 27(1) of the Dublin III Regulation, and that the finding relating to the possibility of challenging that decision at the time of an appeal against the transfer decision depends on the first decision being taken before the second.
77. The following considerations provide, in my view, the key to interpreting that paragraph of the judgment, cited above, according to which the discretion conferred on the Member States under the sovereignty clause is an integral part of the mechanisms for determining the Member State responsible under the Dublin III Regulation.
78. It should be observed at the outset that, in a line of case-law dating back to the judgment in N. S. and Others, the Court relied on that finding to conclude that the decision adopted by a Member State pursuant to the sovereignty clause implemented EU law and therefore had to respect the rights enshrined in the Charter. (32)
79. In my view, that finding cannot be legitimately relied on to argue that a specific remedy against the decision not to use the sovereignty clause must necessarily be granted to applicants for international protection by the law of the Member State concerned.
80. In declaring that the Member States’ discretion under Article 17(1) of the Dublin III Regulation constitutes a ‘mechanism’ for determining the Member State responsible, the Court appears to have employed language which indicates that that article is not part of the set of provisions of the Dublin III Regulation that impose an obligation on the Member States and that confer, accordingly, a right in favour of applicants for international protection.
81. The exercise of that discretion implements EU law within the meaning of Article 51(1) of the Charter, to the extent that it results in the adoption of a transfer decision. Consequently, any plea based on an infringement of the Charter may be raised in the context of an appeal against the transfer decision as provided for in Article 27(1) of the Dublin III Regulation. By contrast, where an applicant for international protection challenges the lawfulness of the transfer decision with regard to a defect vitiating the decision refusing to make use of the sovereignty clause, the pleas raised should necessarily be based on national law.
4. Conclusion on the first question referred
82. In the light of the foregoing, I suggest that the Court answers the first question that Article 27(1) of the Dublin III Regulation must be interpreted as meaning that it does not require Member States to make provision for an effective remedy against a decision of the Member State to exercise, or refuse to exercise, its discretion to assume, under Article 17(1) of that regulation, responsibility for examining an application for international protection.
83. Taking into account the remarks made earlier on the nature of the sovereignty clause, the fact that, in support of his request for the exercise of that clause, the applicant in the main proceedings relied on evidence to establish the risk of infringement of one of his fundamental rights, namely a medical-legal report on his state of psychological health, does not undermine the proposed interpretation. In the absence of any restrictions imposed under EU law, the Minister’s decision not to use that clause can only be subject to challenge by way of judicial review with regard to the external lawfulness of that decision as provided for under Irish law.
84. Likewise, no incompatibility can be identified with the Court’s statement in the judgment in M.A. and Others according to which the Dublin III Regulation does not require the determination of the Member State responsible under the criteria defined by that regulation and the exercise of the discretion conferred by the sovereignty clause to be undertaken by the same national authority.
85. I am aware that the interpretation that I advocate amounts not only to requiring Member States to provide that the adoption of the decision taken under the sovereignty clause should invariably be taken before the adoption of the transfer decision, but also to requiring some Member States, such as Ireland, to review the allocation of powers between judicial authorities in order to ensure that the authority hearing the appeal against the transfer decision has jurisdiction to examine the decision not to use that clause. Even if it were provided that any decision relating to the use of the sovereignty clause should be taken before the adoption of a transfer decision by the IPO, the fact would remain that the IPAT does not have jurisdiction to hear arguments challenging the lawfulness of such a decision.
86. It must be stated, however, that that does not constitute a reason to adopt a different interpretation in so far as, as we know, a Member State may not rely on provisions, practices or situations of its internal legal order in order to justify non-compliance with its obligations under EU law. (33)
87. Since the second question referred must be addressed only if the first question is answered in the affirmative, it is necessary to answer only the third question referred for a preliminary ruling.
B. The third question referred
88. By its third question, the referring court essentially asks, primarily, whether the right to an effective remedy provided for in Article 47 of the Charter precludes a Member State from enforcing a transfer decision as long as no decision has been taken on the request for the Member State in question to exercise its discretion under Article 17(1) of the Dublin III Regulation or on a specific legal remedy, brought under the provisions of national law, against the response to such a request.
89. In other words, the referring court has doubts as to whether an applicant for international protection who has not managed to overturn the transfer decision by invoking the criteria laid down in Chapter III of the Dublin III Regulation, and whose challenge by way of judicial review against a decision not to use the sovereignty clause has not yet been decided, could be transferred before the appeal has been ruled on. Accordingly, some form of effect suspending the enforcement of the transfer decision pending the outcome of the appeal against the decision not to use that clause would be appropriate, according to the referring court, so as to avoid any infringement of Article 47 of the Charter.
90. So far as concerns Article 47 of the Charter, it should be observed at the outset that the preamble to the Dublin III Regulation contains references to that provision. According to recital 19, that regulation seeks to guarantee the right to an effective remedy in respect of decisions regarding transfers in accordance, in particular, with Article 47 of the Charter. In terms of recital 39, that regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof.
91. Article 47 of the Charter is worded as follows: ‘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.’
92. It is apparent from the case-law that in order for a remedy to be effective it must, in exceptional cases, be granted suspensive effect. More specifically, the Court has held, with regard to Directive 2008/115/EC, (34) that, where there are serious reasons to believe that the removal of a third-country national could infringe his or her right not to be subjected to inhuman or degrading treatment, that third-country national must be entitled to an appeal with automatic suspensive effect against the enforcement of the decision permitting that expulsion, in order to avoid serious and irreparable harm pending the outcome of that appeal. (35)
93. Moreover, the Court has not ruled out, with regard to the Dublin III Regulation, that the enforcement of a transfer decision may entail, exceptionally, harm of that kind, (36) and that the effectiveness of an appeal against such a decision may therefore require it to have suspensive effect.
94. It is clear, however, that the issue relating to the requirement to guarantee such effectiveness does not arise in a situation such as that in the present case.
95. Article 47 of the Charter requires there to be an effective remedy only when it comes to protecting a right (or freedom) guaranteed by EU law. By contrast and as explained above, the applicant for international protection has no right guaranteed by EU law for the Member State in which the application is lodged to be responsible for examining that application under Article 17 of the Dublin III Regulation. In the absence of such a right, the right to an effective remedy as enshrined in Article 47 of the Charter does not apply.
96. Consequently, the question whether a challenge by way of judicial review under Irish law has suspensive effect depends solely on the provisions of Irish law.
97. In the alternative, the referring court questions the interpretation of the first subparagraph of Article 29(1) of the Dublin III Regulation.
98. It should be borne in mind that that article provides that the transfer of the person concerned is to be carried out as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) of that regulation.
99. The referring court asks, in essence, whether a specific legal remedy against a decision not to use the sovereignty clause has the effect of automatically suspending the time limit for the enforcement of a transfer decision under Article 29(1) of the Dublin III Regulation or otherwise has suspensive effect on the transfer decision. Even more specifically, it appears to me that the referring court wishes to know whether the first subparagraph of Article 29(1) of the Dublin III Regulation must be understood as meaning that the six-month period provided for therein starts to run from the date of the final decision on an appeal directed against a decision of a Member State not to use the sovereignty clause, taken following the adoption of the transfer decision, such as the challenge by way of judicial review provided for under Irish law.
100. I take the view that the answer must necessarily be that it does not.
101. As I have demonstrated above, Article 47 of the Charter does not require Member States to grant suspensive effect to an appeal brought under national law, such as the challenge by way of judicial review at issue. It follows logically from this that the six-month period within which to transfer the applicant for international protection starts to run, in the case in the main proceedings, from the date on which an appeal brought against a transfer decision is dismissed.
102. In the light of the foregoing, I suggest that the Court answers the third question that Article 47 of the Charter does not preclude a Member State from enforcing a transfer decision before a ruling has been given on the request for that Member State to use its discretion under Article 17(1) of the Dublin III Regulation or on a specific appeal, brought under the provisions of national law, against the outcome of such a request. In that situation, the six-month period within which to transfer the applicant for international protection, as provided for in the first subparagraph of Article 29(1) of the Dublin III Regulation, starts to run from the date on which an appeal brought against a transfer decision is dismissed.
C. Final remarks
103. It follows from a study requested by the Commission and published in 2016 that, already at that time, the Irish authorities had expressed their frustration at the considerable increase in the number of cases that had been generated by Article 17(1) of the Dublin III Regulation. According to those authorities, that provision was understood at national level as establishing a ‘quasi-new procedure’, which had the effect of creating a significant administrative burden for the national courts. (37)
104. I take the view that Article 17(1) of the Dublin III Regulation cannot be understood as permitting the establishment of a separate administrative procedure from that which ends with the adoption of the transfer decision. On the contrary, I am convinced that the Dublin III Regulation created a legal regime in which no further administrative measure following the transfer decision can affect its validity.
105. From that perspective, national provisions which dissociate the exercise of the discretion set out in the sovereignty clause from the transfer decision adopted under the Dublin III Regulation, and which allow a request for the exercise of that discretion to be submitted and examined independently of the adoption of a transfer decision and after that adoption, seem likely to hinder the proper functioning of the Dublin III Regulation in general terms, as the Commission acknowledges in its written observations.
106. In addition to being based on a misreading of the relevant provisions of secondary legislation, I consider that the conclusion according to which the Member States are required to provide for a separate remedy against the decision to use or not to use the sovereignty clause would ultimately validate, in the eyes of the Member State, national legislative choices likely to result in the consequence referred to at the end of the previous point.
107. In that regard, I would invite the Court to consider, by way of illustration, Article 26 of that regulation.
108. Pursuant to that article, which is one of the procedural safeguards set out in the Dublin III Regulation, the notification of the transfer decision to the person concerned covers, where appropriate, a decision not to examine his or her application for international protection, such as, in my opinion, a decision not to use the sovereignty clause. However, it seems to me that that decision could not be notified as part of the transfer decision if it were not taken until after the adoption of the transfer decision. Furthermore, in such a case, it appears to me that the information on the legal remedies available which must be included in the decision notified in accordance with Article 26(2) of the Dublin III Regulation would necessarily be incomplete, given that it could not cover the remedies available against the decision not to use the sovereignty clause.
IV. Conclusion
109. In the light of the foregoing considerations, I propose that the Court answers the questions referred for a preliminary ruling by the High Court (Ireland) as follows:
(1) Article 27(1) 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 stateless person
must be interpreted as meaning that it does not require Member States to make provision for an effective remedy against a decision of the Member State to exercise, or refuse to exercise, its discretion to assume, under Article 17(1) of that regulation, responsibility for examining an application for international protection where the examination is not its responsibility under the criteria laid down in that regulation.
(2) Article 47 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from enforcing a transfer decision before a ruling has been given on the request for that Member State to use its discretion under Article 17(1) of Regulation No 604/2013 or on a specific appeal, brought under the provisions of national law, against the outcome of such a request. In that situation, the six-month period within which to transfer the applicant for international protection, as provided for in the first subparagraph of Article 29(1) of Regulation No 604/2013, starts to run from the date on which an appeal brought against a transfer decision is dismissed.