Thursday 19 February 2015

What remedies do asylum-seekers have in the Dublin system? Details of new case

Steve Peers

Here are the questions and background information in a new Dutch reference to the CJEU, the first case concerning the latest version of the EU's asylum responsibility rules (known as the 'Dublin III Regulation'). It's a rough, unofficial translation from the original. Thanks to Flip Schuller, lawyer at Prakken D'Oliveira, for this.

Preliminary questions from the court The Hague (Den Bosch)

Case number: AWB 14/12282

Brief summary of the case

The applicant applies for asylum on 04-03-2014. Based on research in the EU-VIS-system it turns out that the applicant received a visa from the French representation in Iran on the date 17-12-2013. This visa was valid from 17-12-2013 until 11-02-2014.

On 07-03-2014 the State Secretary for Security and Justice requested France to take charge of the application of the applicant. The French authorities accepted this request on 5-5-2014.

The State Secretary has the view that France is responsible for determining the application for international protection based on article 12(4) of Regulation 604/2013. The applicant had a visa and furthermore the French authorities accepted the take-charge request from NL. Furthermore, the State Secretary finds that the applicant did not prove that he left the territories of the EU MS since he did not provide with documents to underline his travel from France-Iran and Iran-Netherlands. He states that the submitted documents are prepared only on the request of the applicant which lead to the conclusion that these documents are not reliable (not objective evidence). Therefore the State Secretary finds it not credible that the applicant did actually leave the territory of the EU MS, even if one should have the view that the delivered documents are authentic.

The applicant declared that he made use of the visa on 18-12-2013, that he slept one night in Paris and then returned to Iran. Then he travelled on 20-02-2014 illegally from Iran, through Turkey and finally arrived in the Netherlands somewhere around 01-03-2014. The applicant declared that his passport with stamps is taken by the Sepah-e Pasdaran-e Enqelab-e and that he doesn’t have evidence to submit about his travel. The applicant emphasizes that he did not have troubles in Iran before and that the problems firstly arose on 15-02-2014.

To underline the applicant resided in Iran after being in France, he submitted the following documents:

-          A statement from his employer;

-          A statement from a physician;

-          A signed agreement on the sale of property. With regard to that the applicant states that it is dated on 10-01-2014 and that he had to sign this agreement in person.

The preliminary questions are:

1. What is the extent of article 27 of Regulation 604/2013 [the right to an appeal], whether or not in conjunction with consideration 19 of the Preamble of Regulation 604/2013?

Does an applicant, in a situation like this, where the applicant firstly after a claim-acceptance is confronted with the Dublin claim and the applicant thus evidence submits after the claim-acceptance which could lead to the conclusion that not the requested EU MS but the requesting EU MS is responsible for the application for international protection, and that then the requesting EU MS does not examine the submitted evidence nor submit it to the requested EU MS, based on this article (thus art. 27) has a right to an (effective) remedy against the application of the criteria for determining the EU MS responsible (mentioned in chapter III of Regulation 604/2013?

2. Is, in case the applicant based on the Regulation 604/2013, and also based on Regulation 343/2003, in principle doesn’t have an appeal on the incorrect application of determining the EU MS responsible when the requested EU MS has accepted the take-charge request, the view of the State Secretary for Security and Justice correct that this starting point only has an exception in family situations as mentioned in art 7 of Regulation 604/2013, or could there be other particular facts and circumstances considerable on which an applicant can appeal to an incorrect application for determining the EU MS responsible?

3. In case the answer on question 2 is that also apart from family-situations other circumstances could lead to the conclusion that an applicant can appeal on the basis of an incorrect application of the criteria for determining the EU MS responsible, could that be the facts and circumstances mentioned in consideration 12 of this judgment? [These are the documents mentioned in the summary of the case.]

Barnard & Peers: chapter 26




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