Opinion of the Advocate General — ECLI:EU:C:2016:189
Date: 2016-03-17
Language of the case: Swedish
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary — Judgment of the Court (Grand Chamber), 7 June 2016 1. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Obligation of the Member State responsible for examining the application in the event of the taking back of an applicant for international protection — Limits — Cessation of responsibilities in the event of absence from the territory of that Member State for a period of at least three months — Consequences (European Parliament and Council Regulation No 604/2013, Art. 19(2)) 2. Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an application for international protection — Regulation No 604/2013 — Appeal against a decision to transfer an asylum applicant — Possibility of pleading the misapplication of the rule relating to the cessation of responsibilities of the Member States — Judicial review — Scope (Charter of Fundamental Rights of the European Union, Art. 4; European Parliament and Council Regulation No 604/2013, Recital 19 and Arts. 19(2) and 27(1) 1. Article 19(2) of Regulation No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted to the effect that that provision, in particular its second subparagraph, is applicable to a third-country national who, after having made a first asylum application in a Member State, provides evidence that he left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State. The first subparagraph of Article 19(2) of Regulation No 604/2013 provides that, in principle, the obligations to take charge of or take back an asylum applicant arising under Article 18(1) of that regulation cease if the Member State responsible can establish, when requested to take back an asylum applicant, that the person concerned left the territory of the Member States for a period of at least three months. However, the second subparagraph of Article 19(2) of that regulation states that an application lodged after such a period of absence is to be regarded as a new application giving rise to a new procedure for determining the Member State responsible. It follows that, in a situation in which a third-country national, having made a first asylum application in a Member State, left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State, Article 19(2) of that regulation requires the Member State in which the new asylum application has been made to complete, on the basis of the rules laid down in that regulation, the process for determining the Member State responsible for examining that new application. (see paras 15-18, operative part 1) 2. Article 27(1) of Regulation No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in the light of recital 19 of that regulation, must be interpreted as meaning that an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the misapplication of the rule laid down in the second subparagraph of Article 19(2) of that regulation. Article 27(1) of Regulation No 604/2013, read in the light of recital 19, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of that regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. Furthermore, the rule set out in the second subparagraph of Article 19(2) of that regulation establishes the framework within which that process must be conducted when the third-country national in question, after having made a first asylum application in a Member State, left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State. It follows from that provision that in such a situation, the Member State in which the new asylum application was made is required to complete the process for determining the Member State responsible for examining that new application. That new determination process is distinct from the one conducted initially by the Member State in which the first asylum application was made and may result in the designation of a new responsible Member State on the basis of the criteria set out in Chapter III of Regulation No 604/2013. Consequently, in order to satisfy itself that the contested transfer decision was adopted following a proper application of the process for determining the Member State responsible laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the rule set out in the second subparagraph of Article 19(2) of that regulation. (see paras 22-27, operative part 2)