Host state handles the asylum claim if Dublin III transfer takes too long

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Majid Shiri, an Iranian national, arrived in Austria through Bulgaria in 2015. He made an asylum claim in Bulgaria in February of that year but claimed asylum in Austria the following month.

The Austrian authorities asked Bulgaria to take Mr Shiri back under the Dublin III Regulation, which ‘take back request’ Bulgaria accepted. In July the Austrian authorities decided his removal to Bulgaria was lawful, a decision then annulled “on account of Mr Shiri’s vulnerability owing to his state of health”. This decision was reinstated in September.

By then, Mr Shiri was in a position to argue that Austra had become the member state responsible for examining his asylum application because the six-month period by which a Dublin III transfer must take place had passed. The Austrian court referred the case to the Court of Justice of the European Union as C-201/16 Majid Shiri v Bundesamt für Fremdenwesen und Asyl.

The question was whether an applicant for asylum may claim that the responsibility for their claim has transferred to the current host state on the ground that the six-month transfer period has expired, and if so, has

that responsibility transferred automatically, or
is it necessary for the state who would have responsibility for the applicant under the Dublin III Regulation (in this case Bulgaria) to deny they have responsibility any longer?

The Court of Justice dealt with the second question first: that is, does the responsibility for the asylum claim shift without any order, and is it necessary for the potentially receiving state to deny responsibility for that responsibility to shift to the current host state?

Article 29(2), which covers what happens after the six-month time limit, states as follows:

Where the transfer does not take place within the six months’ time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.

That certainly reads as though the transfer should be automatic. The Court of Justice agreed:

It is apparent from the very wording of Article 29(2) that it provides for an automatic transfer of responsibility to the requesting Member State, without making that transfer conditional on any reaction by the Member State responsible.

The court added that this interpretation is consistent with one of Dublin III’s stated objectives: rapid processing of applications for international protection. If transfer of responsibility required an active decision, an asylum applicant could be in limbo for years.

As for the main question, the court noted the twin objectives of Dublin III. In addition to the need for speed just mentioned (contained in recital five), it aims to guarantee the effective protection of applicants for international protection (recital 19). The court decided that in light of these aims, an applicant for international protection must be able to rely on the six-month time limit, and the shift in responsibility as a result of its lapse, in legal proceedings.

In the judges’ words:

In the light, first, of the objective, referred to in recital 19 of the Dublin III Regulation, of guaranteeing, in accordance with Article 47 of the Charter of Fundamental Rights, effective protection of the persons concerned and, secondly, of the objective, noted in paragraph 31 of the present judgment, of determining rapidly the Member State responsible for processing an application for international protection, in the interests both of applicants for such protection and of the proper general functioning of the system established by that regulation, the applicant must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period as defined in Article 29(1) and (2) of the regulation that occurred after the transfer decision was adopted.

This means that Mr Shiri’s asylum claim will in all likelihood be dealt with in Austria, rather than in Bulgaria.

The case is good news for asylum seekers across Europe. It means that EEA countries must act promptly in conducting Dublin III removals. If the host state does not remove the individual by the end of the six-month time limit, responsibility for the asylum application shifts to that country. This is a strong and welcome incentive for efficiency, and against long periods of processing and immigration detention.