CJEU judgment in case C-4/11, Puid, 14 November 2013

Wednesday, November 20, 2013

(Asylum – Charter of Fundamental Rights of the European Union –Article 4 – Regulation (EC) No 343/2003 – Article 3(1) and (2) – Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national – Articles 6 to 12 – Criteria for determining the Member State responsible – Article 13 – Fall-back clause)

Facts of the case

Mr Puid is an Iranian national. His asylum application in Germany was declared inadmissible on the ground that he had transited via Greece, which was therefore the country responsible under the Dublin II Regulation to examine his application. His appeal was upheld by the Administrative Court because, in light of problems with the reception conditions and procedures for asylum seekers in Greece, Germany was therefore required to examine the application. Mr Puid was granted refugee status in Germany. The Higher Administrative Court, in the context of an appeal against the first instance decision, seeks clarification from the CJEU as to what happens when a Member State cannot transfer an applicant to the State initially identified as responsible.

Questions referred for a preliminary ruling

The first three questions referred were withdrawn by the court after the CJEU’s decision in Joined Cases C-411/10 and C-493/10 N.S. and Others. The fourth question to the Court is as follows:

Does an enforceable personal right on the part of the asylum-seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003?

Consideration of the questions referred

The CJEU chose not to directly answer the question referred, because it disputed the premise that a Member State has such a ‘duty’ as mentioned in the question. The CJEU held, referring to N.S. and Others, that although the Member State which is determining the Member State responsible has the right referred to in Article 3(2) of the Dublin II Regulation (commonly referred to as the sovereignty clause) to itself examine the application, the Member State is not required to do so.

The CJEU reiterated the finding in N.S. and Others according to which Member States may not transfer an asylum seeker to a Member State which the criteria set out in Chapter III of the Regulation indicate is responsible, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions for asylum seekers in that Member State provide substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the EU (N.S. & Others [94] and [106]). It is for the referring Court to examine whether such systemic deficiencies existed on the date on which the decision to transfer Mr Puid to Greece was enforced.

The finding that it is impossible to transfer an applicant to the Member State initially identified as responsible entails that the Member State which should carry out that transfer must continue to examine the criteria set out in Chapter III of the Regulation in order to establish whether one of those criteria enables another Member State to be identified as responsible for the examination of asylum application. If they do not, the first Member State with which the application was lodged is to be responsible for examining it in accordance with Article 13 of the Regulation.

However, the Court reaffirms the point made in N.S. and Others that the Member State in which the asylum seeker is located must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of the Regulation.

Read the full judgment and the official press release of the Court of Justice of the European Union.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

Dublin Transfer
Responsibility for examining application