Case C‑63/15

Mehrdad Ghezelbash

v

Staatssecretaris van Veiligheid en Justitie

(Request for a preliminary ruling

from the Rechtbank Den Haag)

‛Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national — Article 12 — Issue of residence documents or visas — Article 27 — Remedies — Extent of judicial scrutiny’

Summary — Judgment of the Court (Grand Chamber), 7 June 2016

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 seeker — Whether it is possible to plead the incorrect application of a criterion relating to the grant of a visa

(European Parliament and Council Regulation No 604/2013, Recital 19 and Arts 12, 21(1) and (3), 22 and 27(1))

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 the regulation, must be interpreted as meaning that an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the regulation.

It is apparent from the wording of Article 27(1) of Regulation No 604/2013 that the legal remedy provided for in that article must be effective and cover questions of both fact and law. Moreover, the drafting of that provision makes no reference to any limitation of the arguments that may be raised by the asylum seeker when availing himself of that remedy. The same applies to the drafting of Article 4(1)(d) of that regulation, concerning the information that must be provided to the applicant by the competent authorities as to the possibility of challenging a transfer decision. The crucial importance, for the application of Regulation No 604/2013, of the process for determining the Member State responsible on the basis of the criteria laid down in Chapter III of the regulation is confirmed by the fact that Article 21(1) of the regulation provides that it is possible for the Member State with which an application for international protection has been lodged to request another Member State to take charge of an asylum seeker only if the first Member State considers that the second is responsible for the examination of the application. Moreover, under Article 21(3) of the regulation, the request for charge to be taken of the applicant must include evidence enabling the authorities of the Member State requested to check whether it is responsible on the basis of the criteria laid down in the regulation. Similarly, it is apparent from Article 22 of Regulation No 604/2013 that the response to such a request must be based on an examination of the elements of proof and circumstantial evidence whereby the criteria laid down in Chapter III of the regulation are applied. Accordingly, the reference in recital 19 of Regulation No 604/2013 to the examination of the application of the regulation in an appeal against a transfer decision for which provision is made in Article 27(1) of the regulation must be understood as being intended to ensure, in particular, that the criteria for determining the Member State responsible laid down in Chapter III of the regulation are correctly applied, including the criterion for determining responsibility set out in Article 12 of the regulation. That conclusion is supported by the general thrust of the developments that have taken place in the system for determining the Member State responsible for examining an asylum application made in one of the Member States as a result of the adoption of Regulation No 604/2013 and by the objectives of the regulation. The EU legislature did not confine itself, in Regulation No 604/2013, to introducing organisational rules simply governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve asylum seekers in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process.

Lastly, it should be noted in that regard that if it were established in the course of such an examination that an error had been made, that could have no bearing on the principle of mutual trust between Member States on which the Common European Asylum System is based, as such a finding would simply mean that the Member State to which the applicant was to be transferred was not the Member State responsible within the meaning of the criteria laid down in Chapter III of Regulation No 604/2013.

(see paras 36, 43-45, 51, 55, 61, operative part)