Case C-36/17: Daher Muse Ahmed v Bundesrepublik Deutschland

The EU does not want asylum seekers to ‘shop around’ its Member States. To this end, various Regulations exist to prevent someone who has already claimed asylum in one Member State from subsequently doing so in another.

But what if an applicant has claimed before, the result of which was being granted not refugee status, but subsidiary protection (‘humanitarian protection’ in the UK)? The CJEU has replied to a reference from the German administrative court to deliver its answer.

Background facts

The applicant claimed asylum in Germany. The German authorities found that he had previously claimed asylum in Italy. His application in Germany was rejected. The German authorities declared that there were no grounds to prevent his deportation to Italy under Regulation (EU) No 604/2013 (“Dublin III”).

Italy refused to ‘take back’ the applicant on the grounds that he benefits from subsidiary protection in Italy. Therefore his transfer should take place in accordance with the readmission agreements in force as regards subsidiary protection, and not under Dublin III.

The questions asked

The German court referred a number of questions to the CJEU, including:

(1) Are Articles 20 to 33 of Regulation No 604/2013 applicable to asylum applicants to whom subsidiary protection has already been granted in a Member State?

The question essentially asked whether Dublin provisions governing the procedure and time limits for making a ‘take back’ request apply to an applicant who has already been granted subsidiary protection by another Member State.

The German court also referred other questions concerning the treatment of applicants if Dublin III does indeed apply. These were not addressed in the judgment.

The legal framework

The case concerned the interpretation of Article 17(1) and Articles 20 to 33 of Dublin III.

Dublin III provides for the ‘take back’ of an applicant by a Member State to whom that applicant has already applied for international protection in three scenarios. Article 18(1) provides that the Member State is obliged to take back the applicant where their application:

1. is under examination
2. has been withdrawn by the applicant
3. has been rejected

Article 23(1) provides that where an applicant in a second Member State falls within the three Article 18(1) scenarios, it may request that the other Member State take back that applicant.

The status of the original application

The question, then, is whether an application which led to the granting of subsidiary protection can be said to be under examination, withdrawn, or rejected.

The court found that an applicant who has been granted subsidiary protection cannot be construed as having withdrawn his application, nor that his application is being examined. Rightly, these are dealt with summarily in the judgment.

Does subsidiary protection equal rejection?

Therefore it fell to the court to decide whether the application has been ‘rejected.’ This is because it is the final circumstance that Article 18(1) of Dublin III envisages.

The court noted that the reference to ‘application’ in Article 18(1)(d) is ambiguous. It is not clear at first glance whether it means international protection in its various guises, or strictly an application for ‘asylum.’

The court found that it cannot mean strictly ‘asylum’. The term ’application’ is used throughout Dublin III to indicate an application for international protection in its various guises. The EU legislature cannot have used it in a different sense in Article 18(1)(d).

Further, it is clear from the context of Dublin III that ‘applicant’ means an applicant for international protection because Article 2(c) defines applicant as a third-country national or stateless person:

who has made an application for international protection in respect of which a final decision has not yet been taken

Therefore, even though the applicant had unsuccessfully claimed asylum, it is clear from the granting of subsidiary protection that the application has not been ‘rejected’.

In sum, the court found that it follows from Article 23(1), read together with Article(1)(d) of Dublin III, that:

a Member State cannot reasonably request another Member State to take back a third-country national, such as the person concerned in the main proceedings under the procedures defined by that regulation, who has lodged an application for international protection in the first Member State after being granted the benefit of subsidiary protection by the second Member State.

Looking ahead

It is difficult to dispute the logic of the court’s decision. Yet the result is a somewhat stricter reading of Dublin III than observers may have anticipated. Those used to an elastic approach in Luxembourg may be surprised that the wording of Dublin III has been used in this case effectively to frustrate the aims of the Regulation. It is now clear that Dublin III itself cannot be used to prevent the precise phenomenon it was designed to prevent: people moving around the EU while claiming asylum.

Nor did those drafting Dublin III itself apparently anticipate this situation. This is in itself surprising. Refugee status can confer entitlements over and above those granted by humanitarian protection. Periods of time before review of the case after granting one form of protection can vary between states, and between forms of protection themselves. In the UK, it can be easier to obtain travel documents as a refugee than a beneficiary of humanitarian protection. Therefore it may be a rational choice to act in the way in which the application in this case did.

How Member States will come to deal with these types of cases remains to be seen. For now, it is clear that Dublin III cannot be used to prevent them having to do so. Dublin III’s chequered history continues for now.