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Italy responsible for the asylum claim of man extradited to the Netherlands


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The Court of Justice of the European Union has taken a strict approach to time limits on take back requests imposed by the Dublin III Regulation. In case C‑213/17 X v Staatssecretaris van Veiligheid en Justitie, the court ruled that Italy had responsibility for considering an asylum claim even though the applicant already had a pending asylum appeal in the Netherlands and had been extradited there.

The court also confirmed that the operation of the European Arrest Warrant scheme is entirely separate to the Dublin III system, even if this means an individual is extradited somewhere and then sent back for consideration of their asylum claim. The justification is that this makes it easier to work out which member state is responsible for considering an asylum claim but it does create a risk of absurd results.

In this case the applicant had originally claimed asylum in the Netherlands and had a pending asylum appeal. He was accused of a serious criminal offence and fled to Italy, where he claimed asylum again. The Italian authorities did not submit a take back request to the Netherlands but did extradite the applicant to the Netherlands in response to a European Arrest Warrant. Having returned to the Netherlands, the applicant claimed asylum again and the Dutch authorities identified Italy as the responsible state. They submitted a take back request to Italy and refused the asylum claim on the basis that it should be considered in Italy. The applicant appealed that decision and the Dutch courts asked the Court of Justice to work out who was responsible.

The judges resolved this by adopting a straightforward interpretation of Article 23 of the Dublin III Regulation. Article 23 requires a take back request to be made within two months of a “hit” on the EURODAC fingerprint database or three months if other data is relied upon. Italy had failed to meet these deadlines and had therefore taken responsibility for considering the asylum claim, despite the extradition. Use it or lose it, you might say.

The court acknowledged that this might lead to the transfer of responsibility at a very late stage in the asylum determination process, but blamed the other EU institutions for this result:

It is true that that solution is likely to result in the Member State in which a new application for international protection has been lodged examining that application, even if an examination of an application for international protection lodged by the same person is ongoing or has already been completed in another Member State.

However, this is a result of the choices made by the EU legislature.

The final question asked by the Dutch court was whether the Netherlands should have taken over the asylum claim by exercising their discretion under Article 18 after having arranged for the applicant to be extradited from Italy. That would have been a common-sense solution. But the Court of Justice ruled that there was no obligation on the Netherlands to do so. That would create a perverse incentive not to seek extradition of asylum seekers:

Indeed, the opposite approach could deter Member States from requesting the surrender of an applicant for international protection for criminal prosecution, in order to avoid having the responsibility for examining that person’s application at the end of the criminal proceedings transferred to them, which could promote impunity and undermine the effectiveness of criminal law enforcement in the Member State concerned.

The typical Dublin III case is far removed from the complicated facts presented here, but the judgment is a useful reminder of the rapid action required by the Dublin III Regulation. If the Home Secretary delays making a take back request and fails to meet the deadlines imposed by Article 23 then the applicant is entitled to have their claim considered in the United Kingdom. This is so even if there is a strong practical justification, like an outstanding appeal in another member state, for removing them. This is a rare instance of procedure rules helping rather than hindering asylum seekers.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers