CJEU : AG Opinion in Shamso Abdullahi v Bundesasylamt (C-394/12) [Arts 10, 16, 18, 19, Dublin Regulation]

Friday, October 4, 2013

The request for a preliminary ruling from the Austrian Asylum Court (Bundesasylamt) concerns a Somali national who entered the EU through Greece and applied for asylum in Austria after having transited through Macedonia, Serbia and Hungary. The national court raised three questions concerning the Dublin Regulation, which the Advocate GeneralCruz Villalón proposes the Court to answer to in the following manner.

The AG takes the view that Article 19(2) of the Dublin Regulation does not confer an individual right upon asylum seekers to have their applications examined by a particular Member State responsible in accordance with the Regulation. The scope of the appeals or review provided for in Article 19(2) is limited to challenging removal to a member state where the fundamental rights of asylum seekers are not guaranteed, or removal to another member state that could violate specific rights attributed to asylum seekers by the Dublin Regulation and which could affect the determination of the member state responsible. These are the rights related to the family unity, the rights of the child and the right to good administration, all of which form, in addition, a basis of the EU Charter of Fundamental Rights.

With respect to the second question, the Advocate General argues that the effects of a first entry into the territory of the Union persist for three months after the asylum seeker has abandoned the territory of the member states in accordance with Article 16(3) of the Dublin Regulation. If, within those three months, the asylum seeker returns to the territory of the member states, those effects are reactivated, with the result that the member state of the first entry continues to be responsible for examining the application in accordance with Article 10(1) of the Dublin Regulation.

Finally, the Advocate General responds to the third question by stating that a member state that displays systemic deficiencies in its asylum system will be exempted from the responsibility to examine the application attributed to it in accordance with the Regulation, with the consequence that another member state will have to be determined in application of the criteria listed in the Regulation subsequently to the criterion that led to the determination of the member state displaying systematic deficiencies.

Read the full text of the Opinion (not available in English) on EurLex. The summary is based on the unofficial translation by ECRE.

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Dublin Transfer
Responsibility for examining application
The former Yugoslav Republic of Macedonia
Charter of Fundamental Rights