The Dublin system and the Right to an Effective Remedy– The case of C-394/12 Abdullahi

This article is to be read in conjunction with the EDAL case summary.

Introduction

On 10 December 2013 the Grand Chamber of the Court of Justice of the European Union (CJEU) issued a preliminary reference ruling in case C-394/12 Abdullahi concerning the scope of Dublin appeals in situations where a Member State has agreed to take charge of an applicant for asylum under Art. 10(1) of the Dublin II Regulation. From the outset, it is important to recognise that the Court’s response is limited to the questions raised and the Court’s interpretation of the right to appeal should only be read in that context. The Court addressed the interpretation of Art. 19(2) in situations where responsibility has been accepted by a Member State on the basis of a take charge request under Article 10(1) of the criteria for irregular external border crossing. Furthermore, the application of the Dublin III Regulation (604/2013) for all new applications for international protection and transfer requests issued from 1 January 2014 means that in practice the effect of this ruling is limited for reasons explained below.

Facts of the case

The case concerns a Somali national, Ms Abdullahi who entered Greece irregularly by boat via Syria and Turkey in 2011. She then travelled on to Austria via the Former Yugoslav Republic of Macedonia, Serbia and Hungary. She was apprehended near the Hungarian border in Austria by police officials who established the route taken by Ms Abdullahi by also interviewing other persons who made the same journey. Ms. Abdullahi lodged an asylum application in Austria and the authorities requested Hungary to take charge of the examination of her asylum claim in accordance with Art. 10(1). Hungary accepted to take responsibility on the basis of the available evidence. Following a number of national Court challenges concerning a dispute as to which Member State was responsible under Art. 10(1) i.e. either Greece (which would accordingly mean Austria due to systemic deficiencies in Greece) or Hungary as the first country of entry, the Austrian Asylgerichtshof stayed proceedings and sought clarification from the CJEU by way of a preliminary reference request. The Asylgerichtshof asked, in essence, three questions:

(1)    What is the scope of a review or appeal procedure under Art. 19(2) Dublin II Regulation where a Member State has agreed to take charge of the examination of an asylum application? Does the national review authority have the possibility to determine that another Member States is responsible irrespective of that agreement and does every asylum seeker have an individual right to have his/her asylum application examined by a particular Member State responsible in accordance with those responsibility criteria?

(2)    Which Member State is responsible under Art.  10(1) Dublin II Regulation in a situation where a third country national travels from a third country, enters the first Member State irregularly and does not claim asylum there, then departs to a third country before entering in an irregular manner again another EU Member State after less than three months and then travels on immediately to a third Member State, where he lodges his first asylum claim?

(3)    Irrespective of the answer to Question 2, if the first Member State referred to therein is a Member State the asylum system of which displays systemic deficiencies equivalent to those described in the judgment of the ECtHR M.S.S. v Belgium and Greece is it necessary to come to a different assessment of the Member State with primary responsibility for the purposes of the Regulation, notwithstanding the judgment in joined cases C-411/10 and C-493/10 N.S. and Others?

The ruling of the CJEU

The CJEU held that Article 19(2) must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) – namely, as the Member State of the first entry of the applicant for asylum into the European Union – the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in that Member State, which provide substantial grounds for believing that the applicant for asylum 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.

Commentary

The right to an effective remedy

It is well established by the jurisprudence of the Court that secondary legislation such as the Dublin II Regulation must be interpreted and applied so as to give full protection for fundamental rights (C-5/88 Wachauf, C-101/01 Lindquist, C-540/03 Parliament v Council). A decision to transfer an asylum applicant under the Regulation is therefore one to which the principle of effective judicial protection and Article 47 of the Charter of Fundamental Rights applies and thus in respect of which the Member State concerned must make available to the applicant an effective remedy. Both the Commission and Ms. Abdullahi in their respective submissions to the Court argued that Art. 19(2) must be interpreted in a manner that satisfies the requirements under Article 47 of the Charter by ensuring that the scope of review includes assessing the legality of the person’s transfer (para. 43-45). However, the Court failed to explicitly take into consideration Article 47 of the Charter in its ruling, instead focusing on the fact that the Regulation must be construed in light of the wording of Article 19(2) and of its general scheme, its objectives and its context, in particular its evolution within the Common European Asylum System (para. 53).

The implications of the Court’s narrow interpretation of the appeal right under Art. 19(2) in relation to Article 10(1) is that even if the determination of responsibility proceeds according to a misapplication of the criteria set out in the Dublin II Regulation, or an erroneous understanding of an  asylum seeker’s  journey, the determination cannot be challenged on these grounds. At this stage of the procedure – post-acceptance of responsibility on the basis of the take charge request under Art. 10(1) – the Court holds that the sole available challenge concerns the compatibility of the receiving Member State’s asylum reception conditions and procedure in a situation of systemic deficiencies with the applicant’s human rights within the meaning of Article 4 of the Charter of Fundamental Rights. Such an approach by the Court may undermine the principle of effectiveness of the right to asylum under Article 18 of the Charter. In doing so the Court also unhelpfully refrained from responding to question (2) raised by the Asylgerichtshof as to which Member State was responsible under Article 10(1) in a situation where the asylum applicant has irregularly crossed the external border of more than one Member State. Furthermore, this must be distinguished from the obligation under N.S. and Others whereby a Member State must not transfer, irrespective of an appeal, when they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to 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 Charter.

This approach by the Court is questionable for a number of reasons:

Firstly the Court in coming to this conclusion referred to the ‘rules applicable to asylum applications having been accepted to a large extent, harmonised at EU level, most recently by Directives 2011/95 and 2013/32.’ It found that ‘it follows that the rules in accordance with which an asylum seeker’s application will be examined will broadly be the same, irrespective of which Member State is responsible.’ However, in practice within the Common European Asylum System there are wide divergences in terms of recognition rates for international protection, asylum procedures and reception conditions.[1] Furthermore, the Asylum Procedures Directive (recast) 2013/32 has recently been adopted and Member States are only required to transpose it at the national level by July 2015.

Secondly, the Court relied upon the objective of speed with reference to recital 4 in the preamble and the requirement not to compromise the objective of the rapid processing of asylum applications (para. 59). Yet justice cannot be forfeited for the sake of efficiency in applying the Dublin II Regulation as was clarified by the Court in C-19/08 Petrosian (para. 48). For example, Article 5(1) obliges Member States to apply the criteria in a hierarchical manner by order of priority set out in Chapter III (N.S and Others para. 95, C-4/11 Puid para. 32). In a situation where the criteria were incorrectly applied and where a Member State mistakenly accepted responsibility on the basis of a take charge request under Article 10(1), due process of law, legal certainty and the procedural rights of the asylum seeker must require that the person concerned be able to contest this decision on the basis of the correct order of criteria irrespective of the obligation for rapid processing of an asylum application. Failure to do so would raise questions concerning the compatibility of the appeal mechanism with Article 47 and Article 41 of the Charter of Fundamental Rights.

Thirdly, and most importantly, the Dublin II Regulation must be interpreted in conformity with Member States’ obligations under the Charter of Fundamental Rights and the European Convention on Human Rights. In particular, in national appeal procedures States must respect their obligations under Articles 1, 18, 41 and 47 of the Charter. The restrictive approach of the Court in ruling that the only way in which the asylum seeker can contest the choice of criterion is by pleading the exceptional delineated circumstances set out in N.S. and Others fails to take into account the possibility of risks of inhuman or degrading treatment under Article 4 Charter in individual circumstances outside the sphere of systemic deficiencies in a Member State as well as threats to other human rights under primary EU law such as the right to dignity (Article 1 Charter) or flagrant breaches of qualified rights such as Article 8 ECHR. As outlined in C-69/10 Diouf the right to an effective remedy is a fundamental principle of EU law. In order for that right to be exercised effectively national courts must be able to review the merits of the reasons for any decision. The principle of good administration under Article 41 Charter also requires a duty of care to examine both the facts and law before reaching a decision (Advocate General Van Gerven Opinion in C-16/90 Nölle / Hauptzollamt Bremen-Freihafen). As stated by Advocate General Trstenjak in her Opinion in N.S. and Others‘the minimum content of the right to an effective remedy includes the requirements that the remedy to be granted to the beneficiary must satisfy the principle of effectiveness. According to that principle, the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult’ (para. 161).

The rights of individual asylum seekers

In taking into account the Dublin system as a regulation the Court notes that ‘owing to their very nature and their place in the system of sources of EU law, regulations operate to confer rights on individuals which the national courts have a duty to protect’ (Para. 48). However, it then goes further to note that certain provisions of the Dublin II Regulation and its implementing rules (Regulation 1560/2003) ‘attest to an intention on the part of the EU legislature to lay down, as regards the determination of the Member State responsible…., organisational rules governing the relations between the Member States’ (Para. 56) and that the application of the sovereignty clause (Article 3(2)) and the humanitarian clause (Article 15(1))‘are designed to maintain the prerogatives of the Member States in the exercise of the right to grant asylum, irrespective of the Member State responsible for the examination of an application on the basis of the criteria set out in that regulation’ (Para. 57). This reflects recent decisions in relation to the Dublin II Regulation which show the Court has been reluctant to recognise that it operates to confer rights upon which asylum seekers can rely in national courts (Puid and C- 620/10 Kastrati Advocate General Opinion). Nevertheless, cases such as C-179/11CIMADE and GISTI, C-245/11 K and C-648/11 M.A. and Others acknowledge the necessity of observing fundamental rights such as the principle of human dignity, family unity and the best interests of the child when applying secondary legislation. In CIMADE for example the Court held that asylum seekers may not be deprived, even for a temporary period of time, of the protection of the minimum standards in the Reception Conditions Directive concerning respect and protection of human dignity (Para. 56). What is clear is that the principle objective of guaranteeing individual asylum seekers the right to asylum under Art. 18 Charter should be central to any system of assigning Member State responsibility for the examination of asylum applications.

The Dublin III Regulation (604/2013)

The Court’s ruling in Abdullahi comes at a time when the recast of the Dublin system has entered into force and will apply from 1 January 2014. Therefore, this ruling will have a limited effect as the recast Regulation 604/2013 contains fundamental changes in respect of the remedies available within the Dublin system. It introduces a new provision in recast Article 27 which requires that all persons subject to the Dublin system shall have the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a transfer decision, before a Court or Tribunal (recast Article 27). Furthermore, recast recital 19 requires in ensuring that international law is respected, that an effective remedy against such decisions should cover both the examination of the application of the Regulation and of the legal and factual situation in the Member State to which the application is transferred.  Such an approach more accurately reflects the Charter of Fundamental Rights and the European Convention on Human Rights.

Conclusion

The application of the Dublin III Regulation (604/2013) from 1 January 2014 will fundamentally reform the provision of remedies within the Dublin system. In the meantime, this ruling of the CJEU should simply be interpreted as stating that in a situation where a transfer decision has been correctly made on the facts of a case concerning irregular border crossing under Article 10 (1), the only way the asylum applicant concerned can call into question the choice of that criterion is on the basis of systemic deficiencies in the responsible Member State. Overall, the aim should be to ensure effective access to an asylum procedure for the asylum seeker concerned in a manner which is compliant with his/her fundamental rights.