In December 2021, the Migration Law Clinic issued an expert opinion concerning cases in which the Raad van Stad (Dutch Council of State) had referred preliminary questions. The cases focus on three people whose applications for international protection are yet to be examined on the merits, since the Dutch Immigration Authorities (IND) decided that Romania or Italy was responsible for the examination of these applications under the Dublin Regulation. In all cases, the applicants appealed this decision before the District Court, which quashed these transfer decisions and ordered the IND to take new decisions. The Dutch State Secretary appealed these judgments before the Council of State, and also requested the Council of State to grant interim measures so that (i) it would not be obliged to take new decisions while the appeal was still pending, and (ii) it would suspend the six-month transfer period the Netherlands has to transfer the applicants to Italy or Romania under the Dublin Regulation. The Council of State granted these interim measures.

Given the lack of a clear interpretation of Article 27 of the Dublin Regulation, the Council of State referred preliminary questions to the CJEU, asking whether Articles 27(3) and 29 of the Dublin Regulation allow the appellate court to grant national authorities interim measures suspending the transfer time limit. In its expert opinion, the Migration Law Clinic argued that this question should be answered in the negative: because Article 27 of the Dublin Regulation does not mention interim measures requested by States in any way, Member States may have national procedural autonomy in this area. However, this is limited by the principle of effectiveness under EU law. The expert opinion concluded that the Dutch system does not observe the principle of effectiveness and thus, second appeal courts should be precluded from granting States interim measures suepnding the transfer time limit, as this would undermine the principle of effectiveness.

In its judgments of 30 March 2023 (C-556/21 read together with the joint C-338/21 case), the CJEU considered that Article 27(3) of the Dublin Regulation “is not intended to regulate interim measures which may be adopted in the context of an appeal at second instance brought by the competent authorities”, nor is Article 27(4), where the transfer decision was annulled at first instance. It follows that, in line with the principle of procedural autonomy, it is for national Member States to decide whether to introduce a second appeal against transfer decisions, as well as to define all relevant procedural rules flowing from this. However, this remains subject inter alia to the principle of effectiveness, in particular as regards the rapid processing of asylum applications.

It therefore concluded that Articles 29(1) and 29(2), when read in conjunction with Article 27(3), do not preclude a court of second instance from granting Member States an interim measure against a judgment annulling a transfer decision, when this interim measure has the effect of enabling national authorities from refraining from taking a fresh decision pending the outcome of that appeal and of suspending the transfer time limit. However, it notes that this is only the case where the transfer decision has been suspended during the examination of the appeal at first instance, which is for the domestic court to ascertain.

In the case of applicants for international protection having requested a permit on the grounds of human trafficking, the CJEU ruled that the Dublin Regulation allows for requests for review of decisions refusing to grant a residence permit as a victim of human trafficking to have the effect of suspending the implementation of the transfer decision, but precludes this suspension from leading to a suspension of the transfer time limit.

The expert opinion of the Migration Law Clinic can be found below.