When an asylum seeker returns to an EU member state they’ve previously been transferred from under the Dublin III regulation, how should their application for international protection be processed?

The Court of Justice of the European Union in C-160/16 Hasan has clarified a number of significant procedural points in the processing of asylum seekers under Dublin III. That somewhat unwieldy instrument, subject of this Free Movement training course, contains detailed provisions on the procedure and time limits that apply to transfers.

Resisting transfer to Italy

Mr Hasan made an asylum application in Germany on 29 October 2014. However, a Eurodac database “hit” matching his fingerprints showed that he had previously applied in Italy. On 11 November 2014, the German authorities requested that Italy take Mr Hasan back to process his claim.

The Italians did not reply to the initial take back request, but the German authorities rejected Mr Hasan’s application and ordered that he be transferred to Italy. Mr Hasan tried, and failed, to challenge the decision to return him to that jurisdiction.

Mr Hasan was eventually transferred on 3 August 2015. He illegally returned to Germany within a month and launched an appeal against the return decision. He relied on Article 29(1) of Dublin III, which states that the transfer must be carried out:

as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State…

The appeal was upheld in a German administrative court on the ground that Mr Hasan’s transfer to Italy had taken place more than six months after he had applied for humanitarian protection. From there, an onward appeal to the federal administrative court led to the reference to the Court of Justice of the European Union, which was asked about three technical issues.

Questions for the Court of Justice

The first was whether a reviewing court was entitled to take into consideration developments subsequent to the first decision to transfer. In Mr Hasan’s case, this would include the expiry of the time limits for a transfer.

The second was whether the first decision to transfer definitely determines the responsibility of the state to which a take back request has been made.

Finally, is the submission of a new take back request tied to a new time limit under article 24(2) of Dublin III? Does this time limit of two months start to run when the member state learns of re-entry, or at some other time?

What information can be considered in a second application?

Central to the court’s reasoning was that article 27(1) of Dublin III provides applicants for international protection with the right to an effective remedy. Recital 19 of Dublin III explains that the scope of that remedy must cover the examination of the legal and factual situation in the member state to which the applicant is to be transferred.

The Court held that it followed that article 27(1) does not preclude an applicant from relying on circumstances subsequent to the first decision.

This is not entirely surprising. A blanket rule against consideration of such information would sit uneasily with fast-developing case law on the suitability of some member states’ asylum process. In 2011 the European Court of Human Rights in MSS found that the Greek process was so woeful that return to Greece contravened a breach of the right to protection against inhuman and degrading treatment. If another MSS-type case arose after being transferred to a country and the applicant decided to flee to another member state, those circumstances would clearly have to be considered. It would be odd if the regulation precluded consideration of the fact its own provisions were being breached.

Does the decision to transfer settle the issue of responsibility?

The court’s assessment was that carrying out a first transfer does not definitively establish the responsibility of the member state to which the applicant is transferred.

This is also not surprising. Dublin III provides for a number of cases where the decision to transfer can be impugned. One example is article 19(2), which concerns those situations where the person concerned has, after transfer, left the territory of the member states for at least three months before making a new application.

What are the time limits for a second take back request?

The court went on to spell out the potentially serious consequences for member states if they fail to keep to the time limits for transfers under Dublin III.

It held that the time limits in article 24(2) apply to a second take back request:

(the request) shall be made as quickly as possible and in any event within two months of receipt of the Eurodac hit.

The court also clarified that limits begin to run when the member state becomes aware that the person concerned has returned to its territory:

the period mentioned in that provision begins to run only from the time when the requesting Member State becomes aware (i) of the presence of the person concerned on its territory and (ii) of matters establishing the responsibility of another Member State for the person concerned.

If a take back request is not made in time, and the applicant lodges a new application, the member state is responsible for examining it and cannot prevent the applicant for lodging a fresh claim.

However the fact that an appeal procedure against a first application is still pending is not equivalent to or a substitute for a new application under article 24(3). Applicants must lodge a new application in order to ensure that their claim will be considered in the member state they have returned to.

What if the take back request is late?

If the take back request is not made within the time limits provided by Article 24(2), and the person has not lodged a new application for international protection, the member state can still make a take back request.

However, the provision does not allow that person to be transferred without a new request being made. Applicants in Mr Hasan’s position should therefore make an application as soon as possible after the time limit has passed.

Useful clarifications

Somewhat of a draw, then, between member states wishing to transfer asylum seekers and those trying to resist transfer.

Asylum seekers can resist a late transfer by making a new application for international protection. If they challenge the original decision, circumstances such as a late first transfer can be taken into account. However, people aren’t permitted to resist a second transfer by merely challenging the first decision.

The circumstances in Hasan are fairly common, and it may seem a surprise that Dublin III itself is silent on them. However, by an analogous reading of the provisions it does contain, the court has provided some welcome clarifications. Whether the UK will benefit from this after Brexit remains to be seen.