AG Opinion on access to the labour market for asylum seekers subject to a Dublin transfer

On 3 September 2020, Advocate General Richard de la Tour delivered his opinion in joined cases C-322/19 and C-385/19 on the request for a preliminary ruling regarding the interpretation of Article 15(1) of the Reception Conditions Directive (2013/33/EU) in the context of Irish legislation on access to the labour market after the adoption of a decision to transfer under the Dublin III Regulation (No 604/2013).
The preliminary questions were submitted in the context of proceedings concerning the legality of decisions refusing to grant the applicants permission to access the labour market as applicants for international protection who were subject to transfers under the Dublin III Regulation.

According to the AG, the issues for the CJEU’s examination are twofold. The first question relates to whether a person subject to a transfer decision enjoys a right of access to the labour market. The AG states, inter alia, that based on a literal, systematic and teleological interpretation of Article 15(1), it must be interpreted as precluding legislation of a Member State under which the applicant may be refused access to the labour market on the ground that a Dublin transfer decision has been adopted. The AG notes that, according to Article 15(1) of the Reception Conditions Directive, applicants must have access to the labour market no later than nine months from the date when the application for international protection was lodged and until a ‘first instance decision’ has been adopted.
The AG further opined that, as a decision for a Dublin transfer does not decide on the admissibility or merit of the case, it therefore cannot be said to be a ‘first instance decision’ and in turn cannot act as a bar to labour market access.

The AG also observes that the principle of effectiveness precludes legislation that limits access to the labour market in the case of a Dublin transfer and finds that the labour market exception does not justify a difference in treatment between applicants whose application is being examined by the host country, on the one hand, or by the responsible Member state, on the other hand. Finally, the AG underlines the importance of work for the preservation of dignity and thereby draws on international law instruments. In addition, he highlights the negative consequence of the lengthy Dublin procedures and concludes that an applicant therefore should not be refused access to the labour market on the grounds that a Member State has adopted a transfer decision.

On the second question, the AG opined that the provision must be interpreted as meaning that a Member State may attribute the delay in adopting a decision at first instance only if the applicant failed to fulfil his or her cooperation obligations under Article 13 of the Procedures Directive. He further emphasised that a Member State may not attribute to the applicant the delay resulting from the procedure for determination of Member State responsibility on the ground that he or she did not lodge an application for responsibility in the first member State of entry or on the ground that he or she brought proceedings against the transfer decision.

Photo: triin, May 2007, Flickr (CC)

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