Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie.
Date: 2016-06-07
30


Article 27(1) of Regulation No 604/2013 provides that the asylum seeker is to have the right to an effective remedy in the form of an appeal or a review, on points of fact and law, against a transfer decision before a court or tribunal.
31


It is apparent from the correlation table in Annex II to Regulation No 604/2013 that that provision corresponds to Article 19(2) of Regulation No 343/2003.
32


In its judgment of 10 December 2013 in Abdullahi (C‑394/12, EU:C:2013:813), the Court held that Article 19(2) of Regulation No 343/2003 was to be interpreted as meaning that the only way an asylum seeker can challenge the responsibility of a Member State, as Member State of the asylum seeker’s first entry into EU territory, is by pleading systemic flaws in the asylum procedure and in the conditions for the reception of asylum seekers in that latter Member State, which provide substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights.
33


The referring court is uncertain as to the relevance of that judgment in determining the scope of Article 27(1) of Regulation No 604/2013 in a situation such as that in the case before it.
34


As a preliminary point, it should be noted that, with regard to the rights enjoyed by an asylum seeker, Regulation No 604/2013 differs in essential respects from Regulation No 343/2003, which was applicable in the case giving rise to the judgment of 10 December 2013 in Abdullahi (C‑394/12, EU:C:2013:813).
35


The scope of the appeal provided for in Article 27(1) of Regulation No 604/2013 must therefore be determined in the light of the wording of the provisions of that regulation, its general scheme, its objectives and its context, in particular its evolution in connection with the system of which it forms part (see, to that effect, judgment of 10 December 2013 in Abdullahi, (C‑394/12, EU:C:2013:813, paragraph 51).
36


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.
37


In particular, it is clear that the EU legislature did not provide for any specific link or, a fortiori, any exclusive link between the legal remedies established in Article 27 of Regulation No 604/2013 and the rule, now set out in Article 3(2) of that regulation, which limits the possibilities for transferring an applicant to the Member State initially designated as responsible where there are systemic flaws in the asylum procedure and in the reception conditions for asylum seekers 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.
38


Furthermore, the scope of the remedy available to an asylum seeker against a decision to transfer him is made clear in recital 19 of Regulation No 604/2013, the content of which did not appear in Regulation No 343/2003.
39


That recital states that, in order to ensure compliance with international law, the effective remedy introduced by Regulation No 604/2013 in respect of transfer decisions should cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred.
40


While the second examination mentioned in that recital refers only to the review of the situation prevailing in the Member State to which the applicant is to be transferred and is designed to check that it is not impossible to proceed with the transfer of the applicant for the reasons set out in Article 3(2) of the regulation, the first examination mentioned in that recital is designed to ensure, more generally, review of the proper application of the regulation.
41


It is apparent from the general scheme of Regulation No 604/2013 that its application is based essentially on the conduct of a process for determining the Member State responsible as designated by the criteria listed in Chapter III of the regulation.
42


Thus, according to recitals 4, 5 and 40 of Regulation No 604/2013, the objective of the regulation is to establish a clear and workable method based on objective, fair criteria both for the Member States and for the persons concerned for determining the Member State responsible for examining an asylum application. It follows, in particular, from Articles 3(1) and 7(1) of the regulation that the Member State responsible is, in principle, the Member State indicated by the criteria set out in Chapter III of the regulation. Moreover, Chapter IV of the regulation identifies specifically the situations in which a Member State may be deemed responsible for examining an asylum application by way of derogation from those criteria.
43


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.
44


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.
45


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 (‘the Dublin system’) as a result of the adoption of Regulation No 604/2013 and by the objectives of the regulation.
46


Thus, with regard, first, to those developments, it should be noted that, as the EU legislature has introduced or enhanced various rights and mechanisms guaranteeing the involvement of asylum seekers in the process for determining the Member State responsible, Regulation No 604/2013 differs, to a significant degree, from Regulation No 343/2003, which was applicable in the case which gave rise to the judgment of 10 December 2013 in Abdullahi (C‑394/12, EU:C:2013:813).
47


In the first place, Article 4 of Regulation No 604/2013 confers a right on the applicant to be informed of, inter alia, the criteria for determining the Member State responsible and the relative importance of those criteria, including the fact that an application for international protection lodged in one Member State may result in that Member State becoming the Member State responsible, even if that designation of responsibility is not based on those criteria.
48


In the second place, Article 5(1), (3) and (6) of Regulation No 604/2013 provides that the Member State carrying out the determination of the Member State responsible must, in a timely manner and, in any event, before a transfer decision has been taken, conduct a personal interview with the asylum seeker and ensure that the applicant or the counsellor representing him has access to a written summary of the interview. Pursuant to Article 5(2) of the regulation, the interview does not have to take place if the applicant has already provided the information relevant to the determination of the Member State responsible and, in that case, the Member State in question must give the applicant the opportunity to present any further information which may be relevant for the correct determination of the Member State responsible before a decision is taken to transfer the applicant.
49


In the third place, Section IV of Chapter VI of Regulation No 604/2013, entitled ‘Procedural safeguards’, sets out at considerable length the arrangements for the notification of transfer decisions and the rules governing the remedies available in respect of such decisions, matters which were not covered with the same degree of detail in Regulation No 343/2003.
50


It is apparent from Article 27(3) to (6) of Regulation No 604/2013 that, in order to ensure that those remedies are effective, the asylum seeker must, inter alia, be given the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal and have legal assistance.
51


It follows from the foregoing that 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.
52


As regards, second, the objectives of Regulation No 604/2013, it is apparent from recital 9 thereof that, while it confirms the principles underlying Regulation No 343/2003, Regulation No 604/2013 is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system, to be achieved, inter alia, by the judicial protection enjoyed by asylum seekers.
53


A restrictive interpretation of the scope of the remedy provided in Article 27(1) of Regulation No 604/2013 might, inter alia, thwart the attainment of that objective by depriving the other rights conferred on asylum seekers by that regulation of any practical effect. Thus, the requirements laid down in Article 5 of the regulation to give asylum seekers the opportunity to provide information to facilitate the correct application of the criteria for determining responsibility laid down by the regulation and to ensure that such persons are given access to written summaries of interviews prepared for that purpose would be in danger of being deprived of any practical effect if it were not possible for an incorrect application of those criteria — failing, for example, to take account of the information provided by the asylum seeker — to be subject to judicial scrutiny.
54


In that context, the making of an application under Regulation No 604/2013 cannot, as the Advocate General observed in point 74 of her Opinion, be equated with forum shopping, which the Dublin system seeks to avoid (judgment of 21 December 2011 in N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 79). Indeed, the court hearing such an application will not be required to make a Member State that is to the asylum seeker’s liking responsible for the examination of the asylum application, but to verify whether the criteria for determining responsibility laid down by the EU legislature have been applied correctly.
55


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 (see, to that effect, judgment of 10 December 2013 in Abdullahi, C‑394/12, EU:C:2013:813, paragraphs 52 and 53), 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.
56


Furthermore, with regard to the objective of establishing a method for the swift determination of the Member State responsible without compromising the objective of processing asylum applications rapidly, referred to in recital 5 of Regulation No 604/2013, it is true that the bringing of an action may possibly postpone the definitive conclusion of the process for determining the Member State responsible.
57


However, the Court has previously held, in the context of Regulation No 343/2003, that the EU legislature did not intend that the judicial protection enjoyed by asylum seekers should be sacrificed to the requirement of expedition in processing asylum applications (see, to that effect, judgment of29 January 2009 in Petrosian, C‑19/08, EU:C:2009:41, paragraph 48). That finding applies, a fortiori, with regard to Regulation No 604/2013, as the EU legislature significantly enhanced, by that regulation, the procedural safeguards granted to asylum seekers under the Dublin system.
58


It should be observed in that regard that the risk that the conclusion of the procedure for the determination of the Member State responsible may be excessively delayed as a result of the scrutiny of the correct application of the criteria for determining responsibility is limited by the fact that such scrutiny must be carried out within the framework established by Regulation No 604/2013, in particular Article 22(4) and (5), which provides (i) that the requirement of proof should not exceed what is necessary for the proper application of the regulation and (ii) that if there is no formal proof, the responsibility of the requested Member State should be acknowledged if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish its responsibility.
59


Moreover, as regards the risk of delay in implementing transfer decisions, it is apparent from Article 27(3)(c) of Regulation No 604/2013 that, by specifying that the Member States are to provide that the person concerned has the opportunity to request, within a reasonable period of time, a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal, the EU legislature acknowledges that the Member States may decide that the lodging of an appeal against a transfer decision does not, of itself, have suspensory effect with regard to the transfer, which may therefore go ahead without waiting for the examination of the appeal, provided that suspension has not been requested or the request for suspension has been refused.
60


Lastly, in the light of developments in the Dublin system as a result of Regulation No 604/2013, the fact that the rules applicable to asylum applications have been harmonised, albeit to a minimal degree (see, to that effect, judgment of 9 November 2010 in B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 114), cannot, in itself, result in an interpretation that limits the scope of the remedy provided for in Article 27 of the regulation.
61


In the light of all the foregoing considerations, the answer to the first question is that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 of the regulation, must be interpreted as meaning that, in a situation such as that in the main proceedings, 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.