CJEU: Judgment, C-695/15 PPU Mirza

Thursday, March 17, 2016

The CJEU has given its judgment in case C-695/15 PPU Mirza  after a preliminary reference under the urgent procedure by the Debrecen Administrative and Labour Court in Hungary. The Hungarian authorities, accepted a ‘take back’ request of a Pakistani asylum applicant from the Czech Republic pursuant to Article 18(1)c) of the Dublin III Regulation (DRIII). They then rejected his second application for international protection as inadmissible and ordered his removal to Serbia, as he had previously transited through Serbia which was deemed to be a safe third country by national decree. The applicant was detained which was contingent on the outcome of these proceedings, so the CJEU agreed to consider the preliminary reference under the urgent procedure. In relation to the substantive questions referred, the CJEU essentially follows the Opinion of Advocate General Kokott, summarised here.

It finds that the right of a Member State to send an applicant to a safe third country in Article 3(3) DRIII is not limited in time, operates subject to the requirements of the recast Asylum Procedures Directive, and can be exercised by any Member State, whether responsible pursuant to DRIII or otherwise.  The wording of Article 33(1) rAPD does not restrict this right. As such, acceptance of responsibility for examining a claim for international protection in the context of a ‘take charge’ request does not preclude the responsible MS from deeming the claim inadmissible and sending the applicant to a safe third country. Article 18(2) DRIII also does not restrict the scope of Article 3(3) and allows a responsible MS to refrain from an examination of the substance of a claim. A different interpretation of this would unjustifiably introduce an exception to Article 3(3), as well as putting an applicant who is taken back after absconding before the examination of his claim is completed in a better position than an applicant who remains. This would risk encouraging secondary movement. 

In relation to the second question, the CJEU finds that the fact that the responsible MS has not informed the transferring MS of its national rules and practice regarding safe third countries in the context of a ‘take back’ procedure does not preclude it from sending the applicant to a safe third country under Article 3(3) DRIII.  An MS is not obliged to provide this information and it has no impact on the determination of the responsible MS or the rights of the applicant. The CJEU notes that the applicant still has the right to an effective remedy against the transfer decision (Article 27 DRIII) and the decision on his application for international protection (Article 46 rAPD).

Finally, Article 18(2) DRIII, in light of Article 28(2) rAPD does not require the responsible MS after taking back an applicant, to continue the examination of an application for international protection at the point at which it was interrupted.

Based on an unofficial ELENA translation.  A press release by the CJEU in English is available here

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Dublin Transfer
Inadmissible application
Responsibility for examining application
Safe third country