Asylum seekers, who arrive in a (Southern) EU Member State may have a family member (a spouse, parent or minor child) who has applied for asylum and is waiting for a decision or who has received an asylum status in another Member State. According to the Dublin Regulation (Articles 8-10), the Member State where this family member is residing, is responsible for the examination of the asylum application of this asylum seeker. The Member State where the asylum seeker has applied for asylum can request the Member State where the family member is residing to take over the asylum application. However, what happens if the Member State refuses the request?
This expert opinion addresses the question whether the asylum seeker concerned has the right to appeal the decision of the requested Member State not to take responsibility for the examination of the applicant’s asylum claim. Article 27 of the Dublin Regulation does not give a straightforward answer to this question. The expert opinion shows that, as a result, the national courts of the Member States interpret Article 27 of the Dublin Regulation in different ways. Some grant the asylum seeker the right to an appeal, while others do not. Therefore, the expert opinion argues that these courts should refer preliminary questions to the Court of Justice of the EU concerning Article 27 of the Dublin Regulation and indicates how they should be formulated.
Moreover, the expert opinion examines how the proposed preliminary questions should be answered. It concludes that Article 27 of the Dublin III Regulation, read in the light of Article 47 of the Charter (the right to an effective remedy) requires a Member State that is requested to take charge of an asylum application under Articles 8-10 of that Regulation by another Member State, to provide the asylum applicant concerned an effective remedy against the decision to reject this request before a national court or tribunal.
The expert opinion was submitted to the District Court in Haarlem in a Dublin case. This District Court has referred preliminary questions to the CJEU on 12 January 2021 (Case C-19/21) in the case of an unaccompanied minor:
Must Article 27 of the Dublin Regulation be interpreted as requiring the requested Member State, whether or not in conjunction with Article 47 of the Charter, to provide the applicant residing in the requesting Member State and seeking transfer pursuant to Article 8 (or Article 9 or 10) of the Dublin Regulation, or the applicant’s family member referred to in Article 8, 9 or 10 of the Dublin Regulation, with an effective remedy before a court or tribunal against the refusal of the request to take charge?
If the answer to Question 1 is in the negative and Article 27 of the Dublin Regulation does not provide a basis for an effective remedy, must Article 47 of the Charter – read in conjunction with the fundamental right to family unity and the best interests of the child (as laid down in Articles 8 to 10 and recital 19 of the Dublin Regulation) – be interpreted as requiring the requested Member State to provide the applicant residing in the requesting Member State and seeking transfer pursuant to Articles 8 to 10 of the Dublin Regulation or the member of the applicant’s family referred to in Articles 8 to 10 of the Dublin Regulation, with an effective remedy before a court or tribunal against the refusal of the request to take charge?
If Question 2 or Question 2 (second part) is answered in the affirmative, in what way and by which Member State should the requested Member State’s decision to refuse the request and the right to appeal against it to be communicated to the applicant or the applicant’s family member?
You can find the expert opinion here:
On 1 August 2022, the Grand Chamber of the Court of Justice ruled in line with the conclusion of the expert opinion of the Clinic that Article 27 of the Dublin Regulation read in conjunction with Articles 7, 24 and 47 of the Charter require a Member State to which a take charge request has been made, based on Article 8(2) of that regulation, to grant a right to a judicial remedy against its refusal decision to the unaccompanied minor, who applies for international protection. However, the relative of that minor does not have an effective remedy against that decision.