Joined Cases C‑582/17 and C‑583/17
Staatssecretaris van Veiligheid en Justitie
v
H.
and
R.
(Requests for a preliminary ruling from the Raad van State (Netherlands))
Judgment of the Court (Grand Chamber), 2 April 2019
(Reference for a preliminary ruling — Determination of the Member State responsible for examining an application for international protection — Regulation (EU) No 604/2013 — Article 18(1)(b) to (d) — Article 23(1) — Article 24(1) — Take back procedure — Criteria for determining responsibility — New application lodged in another Member State — Article 20(5) — Ongoing determination process — Withdrawal of the application — Article 27 — Remedies)
1. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Action brought against a transfer decision taken in respect of an applicant for international protection — Scope of the action — Transfer decision adopted during a take charge or take back procedure — Irrelevant — Limits
(European Parliament and Council Regulation No 604/2013, Arts 9, 18(1)(b) to (d) and 27(1))
(see paragraphs 42-44)
2. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Take back procedure — Scope — Applicant who has left the Member State of his or her first application before completion of the process of determining the Member State responsible and who has lodged a new application in a second Member State — Included
(European Parliament and Council Regulation No 604/2013, Arts 18(1)(b) to (d), 20(5), 23(1) and 24(1); European Parliament and Council Directive 2013/32)
(see paragraphs 48-54)
3. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 –Action brought against a decision to transfer an applicant for international protection in the context of a take back procedure – Possibility of relying on the misapplication of the criterion relating to family members who are beneficiaries of international protection — No such possibility — Exception
(European Parliament and Council Regulation No 604/2013, Arts 9, 18(1)(b) to (d), 20(5), 23(1), 24(1) and 27(1))
(see paragraphs 58-64, 66-70, 74-86, operative part)
Résumé
In the judgment in H. and R. (C‑582/17 and C‑583/17), delivered on 2 April 2019, the Grand Chamber of the Court considered whether, before lodging a request to take back an applicant for international protection, the competent authorities are required to determine the Member State responsible for examining that person’s application, in particular on the basis of the criterion for determining responsibility laid down in Article 9 of Regulation No 604/2013 (1) (‘the Dublin III Regulation’). That article specifies that, where the applicant has a family member who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State is to be responsible for examining the application. In the present case, the Netherlands authorities had requested the German authorities to take back two Syrian nationals who had made a first application for international protection in Germany, before leaving that State and submitting a new application to the Netherlands. The persons concerned had relied on the presence of their respective spouses in the Netherlands, who were beneficiaries of international protection, but the Netherlands authorities had refused to examine those claims and, consequently, to examine their applications, on the ground that, in the context of a take back procedure, an applicant is not entitled to rely on Article 9 of the Dublin III Regulation.
In that context, the Court recalled that the take back procedure is applicable to the persons referred to in Article 20(5) or in Article 18(1)(b) to (d) of the Dublin III Regulation, before stating that the situation in which a third-country national lodges an application for international protection in a first Member State, then leaves that Member State and submits a new application in a second Member State falls within the scope of that procedure, irrespective of whether the application lodged in the first Member State has been withdrawn or whether the examination of that application in accordance with Directive 2013/32 (2) has already started in that Member State.
The Court then pointed out that, although the fact that a transfer decision was adopted at the end of a take charge or take back procedure is not capable of influencing the scope of the right to an effective remedy against such a decision, which is guaranteed by Article 27(1) of the Dublin III Regulation, those two procedures are nevertheless subject to different schemes, that difference being reflected in the provisions of that regulation which may be invoked in support of such an action. In the framework of the take charge procedure, the process of determining the Member State responsible for examining the application for international protection on the basis of the criteria set out in Chapter III of the Dublin III Regulation is of crucial importance and the Member State in which such an application has been lodged may send a take charge request to another Member State only if it considers that the latter is responsible for examining that application. However, in the framework of the take back procedure, those criteria for determining responsibility are not relevant, since all that is necessary is that the requested Member State fulfils the conditions laid down in Article 20(5) (namely the Member State with which the application was first lodged and in which the process of determining the Member State responsible for examining that application is ongoing), or in Article 18(1)(b) to (d) of the Dublin III Regulation (namely the Member State which received the first request and which, at the end of the process of determining the Member State responsible, has accepted its own responsibility for examining that application).
The Court added that the lack of relevance, in the framework of a take back procedure, of the criteria for determining responsibility set out in Chapter III of the Dublin III Regulation is supported by the fact that, while Article 22 of that regulation sets out in detail how those criteria must be applied in the framework of a take charge procedure, Article 25 of that regulation, which concerns the take back procedure, does not for its part contain any similar provision and merely requires the requested Member State to make the necessary checks in order to give a decision on the take back request.
The Court further pointed out that the opposite interpretation, according to which such a request may be made only if the requested Member State can be designated as the Member State responsible pursuant to the criteria for determining responsibility set out in Chapter III of the Dublin III Regulation, is at variance with the general scheme of that regulation, which was intended to establish two separate procedures (namely the take charge procedure and the take back procedure), applicable to different situations and governed by different provisions. That opposite interpretation would moreover be liable to undermine the achievement of the objective of the Dublin III Regulation which is to prevent secondary movements of applicants for international protection, in that it would imply that the competent authorities of the Member State in which the second application was lodged could, de facto, re-examine the conclusion reached, at the end of the process for determining the Member State responsible for examining the application, by the competent authorities of the first Member State regarding the latter’s own responsibility. It could, moreover, have the consequence of undermining the essential principle of the Dublin III Regulation, set out in Article 3(1) thereof, according to which an application for international protection must be examined by a single Member State only.
In conclusion, the Court considered that the criteria for determining responsibility set out in Chapter III of the Dublin III Regulation cannot be relied on in support of an action against a transfer decision taken in the framework of a take back procedure.
However, since the criteria for determining responsibility set out in Articles 8 to 10 of the Dublin III Regulation are intended to promote the best interests of the child and the family life of the persons concerned, when the person concerned has provided the competent authority of the second Member State with information clearly establishing that that Member State must be regarded as the Member State responsible, in accordance with the criterion set out in Article 9 of the Dublin III Regulation, it is then for that Member State, in accordance with the principle of sincere cooperation, to accept its own responsibility, in a situation covered by Article 20(5) of the Dublin III Regulation (namely where the process of determining the Member State responsible has not yet been completed in the first Member State). Therefore, in such a situation, the third-country national may, by exception, rely on that criterion in an appeal against a decision to transfer that national.