C-194/19: Opinion of AG Rantos on the possibility of a remedy based on circumstances subsequent to a Dublin-transfer decision

Tuesday, February 2, 2021

On 2 February 2021, AG Rantos delivered his Opinion in case C-194/19 on the interpretation of Article 27 of the Dublin III Regulation (Regulation 604/2013).

In May 2017, H.A., a person of Palestinian origin, arrived in Belgium where he applied for international protection. Subsequently, a Belgian ‘take back’ request to the Spanish authorities was accepted and, on 1 August 2017, H.A. received an order to leave the Belgian territory. However, a few weeks later, H.A. filed an appeal to annul that decision and suspend its execution, as his brother had arrived and had lodged an application for international protection in Belgium after the order was issued. He argued that it was necessary for their applications to be examined jointly, given the common nature of their persecution. Nonetheless, the Council of Alien Law Litigation dismissed the action, stating that elements that occurred after the order to leave the territory could not affect that order’s legality. Subsequently, H.A. filed an appeal at the Council of State, underlining inter alia that the Council of Alien Law Litigation had limited itself to a legality review, and had not reviewed the elements that occurred after the issuance of the order.

The Council of State stayed the proceedings and asked the CJEU whether Article 27 of the Dublin III Regulation, considered alone or in conjunction with Article 47 of the Charter, must be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a ‘Dublin transfer’ decision?

The AG first analysed Article 27 of the Dublin III Regulation, in light of Article 47 of the Charter, and recital 19 of that Regulation. He discerned two situations in which a tribunal is obliged to take into account elements that have occurred after a transfer decision was taken: (i) when an applicant risks being exposed to inhuman or degrading treatment in the responsible Member State and (ii) when certain elements occur after a transfer decision is taken, and are crucial for the correct application of Dublin III.
Regarding the latter situation, he highlighted, inter alia, the case of Shiri, where an applicant’s appeal against a transfer decision was judged to conform with EU law:  the appeal targeted the circumstance that the six-month transfer deadline had expired after the transfer decision and was, thus, crucial for the correct application of Dublin III.

Therefore, the AG concluded that Article 27 of Dublin III, read in the light of Article 47 of the Charter, requires national courts to review factual circumstances that occur after a transfer decision is taken, in so far as these factual circumstances can, objectively influence the correct application of the Dublin III Regulation. Furthermore, he underlined that national courts, on the basis of EU law, are obliged to undertake such review, even if, under national legislation, they are not required to do so. Nonetheless, he specified that the remedy against a transfer decision may be separate from the remedy against the newly occurred circumstances, provided that this remedy is effective and prompt and as long as the decision taken under that remedy is binding on the court that reviews the transfer decision. Finally, the AG concluded that the arrival of H.A.’s brother does not constitute, prima facie, a circumstance that can objectively influence the correct application of Dublin III.

Based on an unofficial translation by the EWLU team. Photo: Transparency International, March 2013, Flickr (CC)

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Assessment of facts and circumstances
Dublin Transfer