Mark Klaassen, Leiden University
Photo credit: DFID
Photo credit: DFID
An unaccompanied minor has the right to appeal the refusal of a take charge request by the receiving Member State. This is the conclusion of the Court of Justice of the EU (CJEU) in the I. & S. judgment. The preliminary question posed by the District Court of Haarlem in the Netherlands was interesting from the outset because the Dublin III Regulation itself does not provide for such right to appeal. The take charge request procedure functions between two Member States and the individual asylum seeker is not a party to this procedure. The referring court essentially asked the CJEU whether the right to an effective remedy as protected by Article 47 of the Charter of Fundamental Rights obliges the Member States to provide for an appeal procedure against the refusal of take charge requests. In this blog, I discuss the reasoning of the Court and the implications for the application of the Dublin III Regulation.
The applicant is an Egyptian national who applied for asylum in Greece as an unaccompanied minor. His uncle lives in the Netherlands and the applicant would like to join him there as well. Based on the Dublin III Regulation, Greece made a take charge request to the Netherlands. As prescribed by Article 8(2), Greece deems that the Netherlands is responsible for handling the asylum request of the applicant. The Netherlands had refused the take charge request because it deemed that the applicant did not substantiate the existence of family ties with his uncle. Greece requested the Netherlands to reconsider the refusal, but this request was denied. The applicant and his uncle started proceedings against the refusal before the Dutch courts. The administrative appeal was declared inadmissible by the Dutch authorities because the Dublin III Regulation does not provide for a right to appeal the refusal of a take charge request. In the appeal against this, the referring court asked preliminary questions to the CJEU.
Based on Article 27(1) Dublin III Regulation, an asylum seeker has the right to appeal a transfer decision made by the sending State. But when the receiving State refuses a take over or take charge request, no transfer decision is made at all. The CJEU observes that even though Article 27(1) does not provide for a right to appeal the refusal of a take charge request by the receiving State, it does not exclude the possibility that such right to appeal exists. The Court refers to its earlier case law to conclude that the Dublin III Regulation is not only an instrument that functions between the Member States, but that it is also intended to afford rights to asylum seekers. Based on this assertion, the Court ruled in Ghezelbash that asylum seekers must be able to appeal the application of the criteria which determine which Member State is responsible to deal with an asylum request.
In the present judgment, the Court also applies this reasoning to the refusal of a take charge request of an unaccompanied minor. According to the Court, the legal protection of an asylum seeker may not be dependent on the acceptance or refusal of a take charge request (para 41).That would hinder the effectiveness of the right of the unaccompanied minor asylum seeker to be reunified with the family member lawfully residing in the receiving Member State (para 42). The Court holds that based on the right to an effective remedy, an asylum seeker has the right to appeal both the wrong application of the criteria, as well as the refusal of a take charge request (para 45). Furthermore, the right to appeal the refusal of a take charge request is also based on the right to respect for family life and the best interests of the child, as protected by respectively Article 7 and 24(2) Charter. An asylum seeker has the right to invoke the protection of these rights and therefore a procedure must exist to do so (paras 47-49). The family member residing in the receiving Member State does not have the right to appeal the refusal of a take charge request. The Court reasons that Article 27 does not grant appeal rights to the family member at all and therefore the family member also does not have the right to appeal the refusal of a take charge request.
This judgment makes it necessary for the Member States to provide for the possibility to appeal the refusal of a take charge request to the authorities of the receiving Member State. This is a novelty in EU asylum law. The Court does not give further guidance on this appeal procedure. In his Opinion, Advocate-General Emiliou observes that in the absence of concrete guidance in the Regulation itself, the appeal procedure falls within the procedural autonomy of the Member States, which is limited by the principle of effectiveness. The AG argues that this principle requires that the asylum seeker is informed of the reasons for the refusal of the take charge request. The AG deems it most appropriate if the authorities of the sending Member State inform the asylum seeker of the reasons of the refusal by the receiving Member State. Even though the Court has not made this explicit, in my view the reasoning of the AG is still applicable. Not informing the asylum seeker of the reasons for a refusal would undermine the effectiveness of the right to appeal because the asylum seeker would not know on what grounds the take charge request has been refused. Furthermore, the receiving Member State is already obliged to motivate the refusal of the take charge request to the sending Member State based on Article 5(1) Commission Regulation (EC) No 1560/2003. As the applicant is residing in the sending Member State at the moment that the take charge request is refused, it seems the most appropriate solution that the authorities of that Member State inform the applicant of the reasons of the refusal of the take charge request by the receiving Member State and the procedure to appeal this refusal. This, however, requires coordination between both Member States involved.
Having established that under the Dublin III Regulation an asylum seeker has the right to appeal the application of the criteria (Ghezelbash) and the refusal of a take charge request (I. & S.), a remaining question is whether an asylum seeker has the right to appeal against the refusal of a sending Member State to make a take charge request in the first place. In my view, the reasoning of the Court in I. & S. can be applied to that question as well. The Dublin III Regulation aims to provide concrete rights to asylum seekers and lists the criteria for determining the responsible Member State. An asylum seeker, however, is dependent on the sending Member State to make a take charge request. If the sending Member State simply refuses to make a take charge request, for whatever reason, the Dublin III Regulation does not provide the asylum seeker the possibility to appeal against this refusal. In my view, even though Article 27 Dublin III Regulation only grants the right to appeal a transfer decision, reading the criteria from the Regulation as rights for asylum seekers implies that refusing to apply the criteria would undermine the right of the asylum seeker to be transferred to a Member State where a family member is legally present. For this reason, asylum seekers must be able to challenge the refusal to make a take charge request.
The reasoning of the Court is also interesting in the light of the current negotiations regarding the reform of the Dublin system. Article 33(1) of the Proposal for a Regulation on asylum and migration management (COM(2020) 610 final) provides for a limitation of the right to appeal. It states that the scope of the legal remedy shall be limited to the risk of ill-treatment within the meaning of Article 4 Charter and the application of the criteria relating to family life. This proposal from the Commission is an attempt to limit the effects of the Court’s ruling in Ghezelbash. By repeating Ghezelbash and emphasising that the right to appeal is based on the Charter of Fundamental Rights in the I. & S. judgment, it seems unlikely to me that the Court would deem limiting the scope of the legal remedy to be lawful.
Considering that because of the structure of EU asylum law, family members with an asylum background often find themselves in different Member States, in practice the Dublin III Regulation can function as an instrument to bring families together. By placing family ties at the top of the pyramid of criteria in the Dublin system, this was also the intention of the EU legislature. The judgment of the CJEU in I. & S. makes clear that a refusal of a take charge request may violate fundamental rights and therefore a legal remedy must be made available by the Member States. This gives asylum seekers an extra tool to enforce the application of the Dublin criteria to reunite with family members.