In Joined Cases C‑47/17 and C‑48/17 X and X v Staatssecretaris van Veiligheid en Justitie, the Court of Justice of the European Union has ruled that failure to respond to a re-examination request under the Dublin III procedure does not mean that the defaulting member state takes over the asylum claim. The court refused to remedy an apparent deficiency in EU asylum legislation by imposing a sanction for failing to respond. Instead it emphasised that countries must endeavour to meet the deadline in a “spirit of sincere cooperation” even though there are no consequences for failure.

This issue arises where one member state requests that another “take back” or “take charge” of an asylum seeker, usually because of a fingerprint match which proves they claimed asylum in that other country first. If that member state refuses to accept responsibility, the requesting government can submit a re-examination request with additional evidence.

The Dublin III system is based on member states complying with strict time limits, so failure to meet a deadline normally means that the defaulting country becomes responsible for dealing with the asylum claim. However, the implementing regulation merely states re-examination requests should be dealt with in two weeks and does not impose any sanction for missing the deadline.

This anomaly in the legislation creates an incentive for member states to initially refuse to accept responsibility and then ignore re-examination requests. The Court of Justice refused to address this loophole by interpreting the implementing regulation to have implied sanctions for missing the deadline:

the Member State which receives a take charge or take back request under Articles 21 and 23 of the Dublin III Regulation, which, after making the necessary checks, has replied in the negative to that request within the time limits laid down in Articles 22 and 25 of that regulation and which, thereafter, receives a re-examination request under Article 5(2), must endeavour, in the spirit of sincere cooperation, to reply to the re-examination request within a period of two weeks, and where the requested Member State does not reply within that period of two weeks to the re-examination request, the additional re-examination procedure shall be definitively terminated, with the result that the requesting Member State must, as from the expiry of that period, be considered to be responsible for the examination of the application for international protection.

The court’s faith in co-operation within the European Union on asylum seekers is touching, but there will surely be further legislation to address this gap in the Dublin III system. While the Court of Justice is correct to respect its constitutional role and refrain from legislating itself, the system we are left with in the meantime defies common sense.