Friday, 12 February 2021

Shadow Opinion of Advocate-General Eleanor Sharpston QC - Case C-194/19 HA, on appeal rights of asylum seekers in the Dublin system




 

Eleanor Sharpston QC, former Advocate-General of the CJEU

 

Case C‑194/19 H.A. v État belge is a Grand Chamber case which was allocated to me as Advocate General in 2019. As usual, my team and I worked on it thereafter in order to prepare an Opinion. The case was however delayed and was reallocated to my successor Advocate General Rantos after my departure from office on 10 September 2020.


By that stage, the EU taxpayer had already funded a significant amount of initial ‘team Sharpston’ work and thought on the problems highlighted by this reference. For that reason, I have since done what was required to complete this ‘Shadow Opinion’. I offer it as a public contribution to the debate that needs to take place, both inside and outside the Court, on an important and sensitive topic.

 

Advocate General Rantos’ Opinion was presented on 2 February 2021 and is available as usual on the Court’s website (www.curia.europa.eu).


 (Photo credit: Cedric Puisney)

 

 

SHADOW OPINION OF

ELEANOR SHARPSTON QC

published on 12 February 2021

Case C‑194/19

H.A.

v

État belge

 


 

1.                 This is an important reference from the Belgian Conseil d’État (the Council of State: Belgium’s supreme administrative court) that raises issues about effective judicial protection and the application and observance of the rule of law.

2.                 As I shall explain more fully below, the Dublin III Regulation [1] sets out rules for determining which EU Member State should be responsible for examining an application for international protection (either for full refugee status or for what is termed ‘subsidiary protection’). If, applying those rules, Member State A determines (after a preliminary examination) that Member State B is responsible under that Regulation and Member State B acknowledges its responsibility, Member State A will adopt a ‘transfer decision’ prior to making the necessary logistical arrangements to transfer the applicant to Member State B. The Court has had occasion to examine the extent to which Article 27 of the Dublin III Regulation requires that such transfer decisions should be challengeable in a court of law in a series of earlier cases. [2]

3.                 Essentially, the Belgian Conseil d’État now wishes to ascertain whether national procedural rules which do not allow national courts to take account of facts and circumstances arising after the administrative authorities adopt a transfer decision are compatible with the right to an effective remedy guaranteed under Article 27(1) of the Dublin III Regulation.

EU law

The Charter of Fundamental Rights of the European Union

4.                 Article 7 of the Charter, mirroring Article 8(1) of the ECHR, [3] states that ‘Everyone has the right to respect for his or her private and family life, home and communications’.

5.                 Article 18 provides that the right to asylum is to be guaranteed with due respect for the rules of the Geneva Convention relating to the status of refugees [4] and in accordance with the Treaty on European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’).

6.                 Article 41 guarantees the right to good administration. That includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. [5]

7.                 Article 47 states, ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented’. [6]

8.                 Article 51 delineates the field of application of the Charter, providing in its first paragraph that, ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers...’.

9.                 Article 52(3) states that, ‘in so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’.

The Dublin III Regulation

10.             I first paraphrase the content of various pertinent recitals to the Dublin III Regulation.

11.             The Dublin III Regulation is based on the full and inclusive application of the Geneva Convention, ensuring that nobody is sent back to persecution. All EU Member States are considered to be safe countries for third-country nationals. [7] The aims of the Dublin III Regulation include establishing a clear and workable method for determining the Member State responsible for examining an asylum application. [8] That method is ‘based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection’. [9]

12.             The Dublin system [10] was reviewed in the context of an evaluation of the first-phase instruments of the Common European Asylum System (‘the CEAS’). A comprehensive ‘fitness check’ was conducted covering the legal, economic and social effects of the Dublin system, including its effects on fundamental rights. [11] Directive 2013/32 [12] applies in addition to, and without prejudice to, the provisions concerning the procedural safeguards regulated under the Dublin III Regulation, subject to the limitations in the application of that Directive. [13]

13.             In accordance with the ECHR and with the Charter, respect for family life should be a primary consideration of Member States when applying the Dublin III Regulation. [14] The processing together of applications for international protection submitted by members of one family in a single Member State makes it possible to ensure that such applications are examined thoroughly, that the decisions taken in respect of them are consistent and that members of one family are not separated. [15] Any Member State should be able to derogate from the responsibility criteria, in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in the Regulation. [16]

14.             Recital 19 is so central to the present case that I shall quote it in full. It states: ‘In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established in accordance, in particular, with Article 47 of [the Charter]. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of the Dublin III Regulation and of the legal and factual situation in the Member State to which the applicant is transferred’.

15.             Finally, the recitals expressly record that ‘with respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights’ [17] and state that the Dublin III Regulation ‘respects the fundamental rights and observes the principles which are acknowledged, in particular, in [the Charter]. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly’. [18]

16.             Article 1 explains that the Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (‘the Member State responsible’).

17.             In accordance with Article 2, the term ‘family members’ includes the applicant’s spouse (or unmarried partner in a stable relationship where the law of the home country treats such relationships in a way comparable to married couples); the minor children of such couples; where the applicant is an unmarried minor, the parent or any other responsible adult.

18.             Article 3(1) provides that Member States are to examine ‘any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible’. However, the first sub-paragraph of Article 3(2) already envisages that applying the ‘Criteria for determining the Member State responsible’ contained in Chapter III of the Dublin III Regulation (‘the Chapter III criteria’) may not always be straightforward, inasmuch as it states that ‘Where no Member State responsible can be designated on the basis of the [Chapter III criteria], the first Member State in which the application for international protection was lodged shall be responsible for examining it’. The remainder of Article 3(2) is concerned with further situations in which it proves impossible in practice to make an easy and straightforward transfer to a Member State which should have primary responsibility under the Chapter III criteria. [19]

19.             Chapter III is entitled ‘Criteria for determining the Member State responsible’. Article 7(1) states that the Chapter III criteria are to be applied in hierarchical order. At the top of the hierarchy are the criteria concerning minors and children. [20] Pursuant to Article 7(2), ‘the Member State responsible in accordance with the [Chapter III criteria] shall be determined on the basis of the situation obtaining when the applicant first lodged his or her application for international protection with a Member State’.

20.             Article 9 states that ‘where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.’

21.             Pursuant to Article 10, if the applicant has a family member in a Member State whose application for international protection in that Member State has not yet been the subject of a first decision regarding the substance, that Member State is to be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.

22.             Article 11 (‘Family procedure’) states: ‘Where several family members and/or minor unmarried siblings submit applications for international protection in the same Member State simultaneously, or on dates close enough for the procedures for determining the Member State responsible to be conducted together, and where the application of the [Chapter III criteria] would lead to their being separated, the Member State responsible shall be determined on the basis of the following provisions: (a) responsibility for examining the applications for international protection of all the family members and/or minor unmarried siblings shall lie with the Member State which the [Chapter III criteria] indicate is responsible for taking charge of the largest number of them; (b) failing this, responsibility shall lie with the Member State which the [Chapter III criteria] indicate is responsible for examining the application of the oldest of them’.

23.             Pursuant to Article 12(2), where an applicant is in possession of a valid visa, it is the Member State which issued the visa that is responsible for examining the application for international protection.

24.             In accordance with Article 17(1), ‘by way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the [Chapter III criteria]’.

25.             Article 27(1) states that ‘The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal’. [21] Article 27(3) provides:

‘For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:

         (a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or

         (b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or

         (c) 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 or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based’.

National legislation

26.             Article 39/2 of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to Belgian territory, residence, establishment and removal of foreign nationals: ‘the Law of 15 December 1980’) states that ‘the Council [Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) (‘the CCE’)) ] shall rule by way of judgments on other actions for annulment on the ground of infringement of procedural requirements which are essential or breach of which leads to nullity, or on the ground of abuse or misuse of powers’.

27.             From the material in the order for reference, as amplified and confirmed by the submissions made at the hearing, it appears that when considering a challenge to a transfer decision made under the Dublin III Regulation, the powers of the Belgian courts are indeed strictly limited. Essentially, the court may assess the legality of the administration’s decision exclusively by reference to the criteria listed in the Law of 15 December 1980. The referring court states in terms that the first instance tribunal was therefore right in refusing to take account of facts arising subsequent to the transfer decision (‘later facts’).

28.             The position is otherwise in the context of an application for interim relief against a transfer decision. There, it appears, the court is entitled to have regard also to later facts.

Facts, procedure and the question referred

29.             The Opinion of Advocate General Rantos, delivered on 2 February 2021, contains the usual detailed summary of these matters. I present here a shortened synthesis in order to make what follows comprehensible to the reader of this text.

30.             Mr H.A. is of Palestinian origin. On 22 May 2017, he arrived in Belgium. The following day, he made an application for asylum.

31.             On 31 May 2017, the services of the Minister for Asylum and Immigration (Ministre de l’Asile et de la Migration (‘the Minister’)) interviewed Mr H.A. On 22 June 2017, the Belgian authorities asked the Spanish authorities (which had issued Mr H.A. with a visa) to ‘take charge’ of him, in accordance with Article 12(2) of the Dublin III Regulation. On 4 July 2017, the Spanish authorities accepted that request. On 1 August 2017, the Minister therefore adopted a decision refusing Mr H.A. leave to remain and ordered him to leave Belgium (‘the contested decision’).

32.             On 22 August 2017, Mr H.A.’s brother arrived in Belgium.

33.             Very shortly thereafter, on 25 August 2017, Mr H.A. lodged an application for annulment of the contested decision with the CCE. He also applied for suspension of enforcement of that decision. Whilst these proceedings concerning Mr H.A.’s application were pending, the Office of the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons) was in the process of assessing his brother’s asylum application. Mr H.A. claimed in particular that, because of the similarities between his application for asylum and that of his brother, it was necessary for their applications and their respective accounts of the surrounding circumstances to be assessed together.

34.             By judgment of 30 November 2017, the CCE rejected Mr H.A.’s application. The CCE took the view that, under national law, it was restricted to reviewing the legality of the administrative decision in Mr H.A.’s case. It was unable to review that decision in substance. In assessing legality, it could not take account of events or circumstances, such as the arrival of Mr H.A.’s brother in Belgium and the brother’s application for asylum, which occurred after the administrative decision in Mr H.A.’s own case was adopted.

35.             Mr H.A. challenged the CCE’s ruling before the referring court. He seeks to have that judgment set aside on the grounds that by failing to take account of events and circumstances subsequent to the adoption of the contested decision, the CCE failed to have regard to his right to an effective remedy, guaranteed by Article 27 of the Dublin III Regulation and Article 47 of the Charter.

36.             For their part, the Belgian authorities argue that the Dublin III Regulation leaves Member States free to choose whether to make provision in their national legal systems for an appeal against transfer decisions or a review, in fact and in law, of such decisions. Belgian law provides for an appeal against transfer decisions in the form of an appeal seeking annulment, rather than providing for an action in which the court has full jurisdiction to determine issues of fact and law.

37.             The referring court states that the central issue is whether the remedy provided under national law is effective for the purposes of Article 27 of the Dublin III Regulation. Under national law, the CCE reviews the legality of a transfer decision under that Regulation on the basis of the case file and information in the possession of the administrative authority at the time that it took the contested decision. The CCE was therefore correct to refuse to take into account circumstances arising after the contested decision was taken. The CCE’s judgment therefore did not examine whether the new evidence submitted by Mr H.A. after that decision was adopted was (or might be) decisive for the fair assessment of his asylum application and should therefore preclude transferring him to the Spanish authorities in accordance with Article 12(2) of the Dublin III Regulation.

38.             Against that background, the referring court asks whether Mr H.A.’s right to an effective remedy under EU law was respected. Accordingly, it has referred the following question to this Court:

   ‘Must Article 27 of [the Dublin III Regulation], considered alone or in conjunction with Article 47 of [the Charter], be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a “Dublin transfer” decision?’

39.             Written observations were submitted by Mr H.A., the Governments of Belgium and the Netherlands and the European Commission. With the exception of the Netherlands, the same parties attended the hearing held on 9 November 2020.

Assessment

Admissibility

40.             Both the wording and the scheme of Article 267 TFEU presuppose that a dispute is actually pending before the national courts in which they are called upon to give a decision which is capable of taking account of the preliminary ruling. [22] Therefore, the Court may verify of its own motion that the dispute in the main proceedings is continuing. [23]

41.             Here, the dispute in the main proceedings concerns Mr H.A.’s challenge against the Minister’s decision of 1 August 2017 refusing him leave to remain in Belgium and ordering him to leave the territory. That challenge was rejected at first instance by a judgment dated 30 November 2017.

42.             However, on 26 June 2018, Mr H.A. challenged a further administrative decision that extended the period of his transfer from Belgium to Spain under Article 29(2) of the Dublin III Regulation. That subsequent challenge was upheld by judgment of 28 September 2018. In consequence, in accordance with Article 29(2) of the Dublin III Regulation, Belgium then became the Member State responsible for examining Mr H.A.’s application for asylum.

43.             In the light of those events, the Belgian Government submits that there is no need for the Court to reply to the question referred for a preliminary ruling. It claims that the main proceedings no longer have a purpose; or, at the very least, that Mr H.A. no longer has an interest in pursuing his application for annulment of the judgment of the CCE confirming the contested decision.

44.             According to the Courts settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling. It is otherwise only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. [24]

45.             In view of the Belgian Government’s submission on admissibility, this Court wrote to the Conseil d’État (the referring court) asking whether it wished to maintain the reference for a preliminary ruling.

46.             The Conseil d’État replied in the affirmative. It stated that under national procedural rules it was still seized of the case. Whilst the factual information provided by the Belgian Government relating to H.A. was in itself correct, the Conseil d’État still needed this Court’s response to the question referred in order to enable it to decide the dispute in the main proceedings. [25]

47.             I recall that it is not for the Court, in the context of a request for a preliminary ruling, to rule on the interpretation of provisions of domestic law. [26] The referring court here is the supreme administrative court of Belgium. It is therefore presumably best-placed to state what its duties are under national law.

48.             Having regard to the fact that the referring court has expressly indicated that it wishes to maintain its request for a preliminary ruling and has explained its reasons for doing so (specifically, that it considers that it remains obliged to rule on the dispute at issue in the main proceedings), the Court must proceed on the basis that the dispute in the main proceedings is still pending before the referring court and that a reply from the Court to the question referred remains useful for resolving that dispute.

49.             The Court should therefore answer that question. [27]

Preliminary remarks

50.             The referring court states that it was common ground in the main proceedings that Mr H.A.’s brother does not fall within the definition of a ‘family member’ in Article 2(g) of the Dublin III Regulation. That court also states, however, that the family relationship is not decisive for the purposes of determining the issue with which it is seized, which is whether the remedy provided under national law is effective for the purposes of Article 27 of the Dublin III Regulation. That issue – the issue before the Conseil d’État which forms the basis for the reference – arises because the administrative court, correctly applying national law, refused to take account of new evidence submitted by Mr H.A. after the transfer decision was adopted.

51.             The referring court is correct in stating that as the family relationship between Mr H.A. and his brother is filial and neither applicant is a minor, the provisions of Articles 10 and 11 cannot apply as such to determine the Member State responsible within the scheme of the Dublin III Regulation. Nor is there material to suggest that the arrangements for a dependent relative contained in Article 16 of the Dublin III Regulation are triggered here.

52.             Mr H.A. does not claim, however, that those specific provisions apply to him. Rather, he argues that a fair consideration of where his application for international protection should be processed requires that the national authorities should have regard, when considering whether to transfer him to another Member State, to the fact that his brother arrived in Belgium shortly after the contested decision was taken and applied for asylum in Belgium.

53.             The core of the present reference is therefore the following. Given that the definition of ‘family members’ in Article 2(g) of the Dublin III Regulation is narrower than the term ‘family life’ in Article 7 of the Charter, can Mr H.A. rely on a right to effective protection under Article 27 of the Dublin III Regulation in order to invoke violation of the principle of fair treatment by the national administrative authorities when applying EU law?

54.             By its single question, the referring court is essentially asking about the proper scope of the review that a national court should carry out, under Article 27 of the Dublin III Regulation, of transfer decisions taken by the competent national authorities. Specifically, must such a court have the possibility, in appropriate circumstances, of taking into account and evaluating for their relevance facts that arose after the lodging of the application for international protection? For convenience, in what follows I shall refer to this as ‘judicial scrutiny of subsequent facts’.

55.             Conceptually, one can imagine a palette of different types of judicial oversight of such decisions. A ‘thin’ review might confine itself to a formal check as to whether express procedural requirements (such as a time limit for taking the contested decision and the arrangements for its notification to the person concerned) had been complied with. A slightly more adequate review might examine whether the decision-maker had, at least ostensibly, applied the correct legal rules to the evidence that had been placed before him. A full substantive review would be one in which the court would itself look at the evidence proffered in the light of the legal rules to be applied and ask the question, ‘objectively and according to the appropriate standard (be that ‘balance of probabilities’ or ‘the decision-maker enjoys X margin of appreciation’): should this decision stand?’

56.             I should begin by recording that, in Shiri, the Court left that question open. The Court’s judgment is silent as to whether Article 27 of the Dublin III Regulation, read in the light of Article 47 of the Charter, requires that national courts should be able to carry out a full review of the facts and circumstances behind a transfer decision that is being challenged, and have regard to later facts as appropriate; or whether Member States continue to enjoy a discretion as to the extent and nature of that review, with the result that a more limited form of review is nevertheless sufficient to comply with the requirements of the Dublin III Regulation.

57.             I shall begin this analysis by considering briefly the various authorities that have been cited to the Court to support the different sides of the debate. I shall then set out and discuss the arguments, as I see them, in favour of espousing one or other position before concluding with the recommendation that I would myself make to the Court for disposing of this reference.

Case-law

58.             I begin with N.S. and Others[28] for it was in that case that the Court first indicated that there might be circumstances in which the Member State’s facility, under what was then Article 3(2) of Regulation No 343/2003 [29] (the ‘Dublin II Regulation’; now Article 17 of the Dublin III Regulation), itself to take responsibility for the substantive consideration of an application for international protection does not equate to an untrammelled discretion for the Member State, irrespective of the circumstances, to do exactly what it wants. Rather, as the Court explained, the United Kingdom (N.S.) and Ireland (M.E. and. Others) could not return those applicants to Greece, even though Greece would normally be the Member State responsible under the Dublin II Regulation. Rather, in certain particular and serious circumstances, the Member State where the applicants had lodged their applications for international protection was obliged to exercise its discretion so as to take over responsibility for the substantive consideration of those applications. [30]

59.             In Ghezelbach [31] the Court had to decide whether the restrictive approach to access to a court characterised by the Dublin II Regulation as interpreted in Abdullahi [32] should be carried over and applied to the interpretation of Article 27 of the Dublin III Regulation. It decided that, on the contrary, it was clear that the EU legislature had intended a different regime to apply that comprised wider access to judicial review of transfer decisions. [33] The Grand Chamber cited and endorsed the two types of judicial examination listed in recital 19 of the Dublin III Regulation in extenso[34] explaining that ‘the first examination mentioned in that recital is designed to ensure, more generally, review of the proper application of the regulation. [35] The Court identified the objective of the regulation as being ‘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’. [36] The Court supported its conclusion by a detailed examination of the general thrust of the developments that had taken place in the ‘Dublin system’ [37] and emphasised that a restrictive interpretation of the scope of the rights conferred by Article 27 of the Dublin III Regulation would thwart the objective of enhancing the effectiveness of the judicial protection afforded to asylum seekers. [38] The Court concluded that an asylum seeker was entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the Chapter III criteria for determining the Member State responsible. [39]

60.             The Court reached a similar conclusion in Karim[40] where it held that in a challenge to a transfer decision, an asylum seeker could invoke an infringement of the rule in Article 19(2) of the Dublin III Regulation (which, read with Article 19(1), states that an application lodged after a period of absence of at least three months is to be regarded as a new application giving rise to a new procedure for determining the Member State responsible). [41]

61.             The Court’s judgment in Shiri [42] was the first to involve consideration of later facts. The important element for present purposes in the (rather convoluted) procedural history is that Mr Shiri’s challenge to the transfer decision, which involved determining the consequences of the expiry of the six-month time limit applicable for transferring him to Bulgaria (the ‘transfer period’), necessarily required the national court to take into account a fact (expiry of the transfer period) that by definition had occurred after the transfer decision itself was made. Was Article 27 of the Dublin III Regulation to be read as permitting Mr Shiri to raise that issue in those proceedings?

62.             The Court first established that, where the transfer does not take place within the transfer period, responsibility for considering the substantive asylum application transfers automatically to the requesting Member State. [43] In so doing, the Court reiterated that Article 27 enshrines the right to an effective remedy, [44] endorsed the description of that remedy in recital 19 to the Regulation [45] and recalled that it had already held that that remedy includes raising arguments based on the non-observance of procedural safeguards. [46] (I interject here that, to my mind, the right to have one’s application treated fairly – in the sense that the competent authorities are required to take relevant material and arguments into account – is precisely such a (fundamental) procedural safeguard: see further points 107 and 112 to 120 below.)

63.             The Court then turned to the question of whether Mr Shiri could invoke that legal consequence based upon a later fact in proceedings covered by Article 27. It pointed out that the national authorities should in any event not carry out the transfer: instead, they should take on their own initiative the necessary measures to acknowledge their responsibility and proceed without delay to the substantive examination of the asylum application. [47] However, the Court also then went on to rule as follows:

 

‘Article 27(1) of the Dublin III Regulation, read in the light of recital 19 thereof, and Article 47 of the [Charter] must be interpreted as meaning that an applicant for international protection must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period... that occurred after the transfer decision was adopted. The right which national legislation such as that at issue in the main proceedings accords to such an applicant to plead circumstances subsequent to the adoption of that decision, in an action brought against it, meets that obligation to provide for an effective and rapid remedy’. [48]

 

64.             I add, in parentheses, that if the Belgian prohibition on judicial scrutiny of subsequent facts is as absolute as has been suggested to the Court, it would seem that if the facts giving rise to Mr Shiri’s case had come before a Belgian court – rather than, as actually happened, before an Austrian court – Belgian law would have precluded the national court from taking that matter into account.

65.             Next I should mention Mengesteab[49] which arose out of the very delayed treatment by Germany of an application for asylum. Once it did begin examining the file, Germany made a ‘take charge’ request of Italy (which Mr Mengesteab had transited before reaching Germany and where his fingerprints had been registered in the Eurodac system). The Italian authorities failed to respond within time and the German authorities therefore sought to order Mr Mengesteab’s transfer to Italy in reliance upon Article 22(7). Mr Mengesteab claimed, however, that because the take charge request had been made after the expiry of the three-month period prescribed by Article 21(1), first sub-paragraph, of the Dublin III Regulation, responsibility for examining his substantive application for international protection had thereupon transferred automatically to Germany. The chronological sequence of events was therefore (i) lodging of the application for international protection; (ii) expiry of the time limit for making a take charge request; (iii) making of the take charge request; (iv) expiry of the time limit for responding to that take charge request (no response) and (v) making of the transfer decision that Mr Mengesteab sought to challenge. Thus, the relevant time limit that, if upheld, would trigger a transfer of responsibility back to Germany expired three months after the application was lodged but significantly before the take charge request to Italy was made.

66.             The Grand Chamber stated that the EU legislature had ‘decided to involve asylum seekers in that process [of determining the Member State responsible] 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’. [50] The Court emphasised that the Dublin III Regulation’s objective of making ‘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’ was ‘to be achieved, inter alia, by the complete and effective judicial protection enjoyed by asylum seekers’. [51] The Court concluded that Article 27 ‘must be interpreted as ensuring that the applicant for international protection has effective judicial protection by, inter alia, guaranteeing him the opportunity of bringing an action against a transfer decision made in respect of him, which may concern the application of that regulation, including respect of the procedural guarantees laid down in that regulation’. [52] As there formulated, the scope of available challenges to a transfer decision under Article 27 of the Dublin III regulation is potentially significantly wider than challenges confined either to the application of the Chapter III criteria or to violation of a specific procedural deadline under that Regulation.

67.             C.K. [53] had entered the European Union via Croatia but had then travelled on Slovenia., where she arrived in an advanced state of pregnancy. She had a high-risk pregnancy and suffered psychiatric difficulties after giving birth. She argued that, although there were not ‘systemic flaws’ in the asylum procedure and the conditions for receptions of asylum-seekers in Croatia, transferring her to Croatia would violate her wider rights as protected by Article 33 of the Geneva Convention, Article 3 of the ECHR and Article 4 of the Charter. To be lawful, a decision as to the Member State responsible for considering her asylum application had, she submitted, to take those wider rights – arising from later facts – into account. [54]

68.             In a lengthy and careful ruling, the PPU chamber held that the scope of the right to an effective remedy under Article 27 of the Dublin III Regulation ‘covers both the factual and legal circumstances surrounding [the contested transfer decision]’. [55] The Court went on to give detailed guidance to the referring court as to how it should assess the material before it, emphasising that the national authorities and/or the national courts must eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned and that, where necessary, the Member State might choose to conduct its own assessment of the asylum application by applying the discretionary clause in Article 17(1) of the Dublin III Regulation. So far as I can judge from the texts of the judgment and the Advocate General’s Opinion, a significant percentage of the material supporting the applicant’s argument that there would be a very serious risk to her health if she were to be transferred to Croatia was later fact material – that is, material relating to the period after the making of the contested transfer decision; and of course what the applicant feared would happen if she were transferred to Croatia was a fear that related to the future, not the past. All of that was duly taken into account by the PPU chamber in formulating its ruling.

69.             The applicant in Hasan [56] was transferred from Germany to Italy (where he had lodged his first application for international protection) but then almost immediately returned illegally to Germany, where he resumed his litigation. Had his transfer to Italy been carried out within the time limit laid down by Article 29(1) of the Dublin III Regulation? Even if that was the case, were there ‘systemic flaws’ in Italy’s asylum procedure and reception conditions for applicants for international protection such that he could not lawfully be transferred there? Or did Mr Hasan’s illegal return to Germany mean that, at the material time, responsibility for examining his asylum application had in any event already transferred to Germany?

70.             After citing the texts of Article 27 and recital 19 and the Grand Chamber rulings in Mengesteab and Shiri[57] the Court reiterated that ‘an applicant must have an effective... remedy available to him which enables him to rely on circumstances subsequent to the adoption of the decision to transfer him, when the correct application of the Dublin III Regulation depends upon those circumstances being taken into account’. [58]

71.             In his Opinion in Hasan, my late and regretted colleague and friend Advocate General Bot embarked upon an extended and careful analysis of Article 27 of the Dublin III Regulation. He concluded that Article 27 should be construed as requiring the court seized of an application under that provision to conduct an ex nunc examination of the transfer decision. [59]

72.             I should make brief mention of M.A. and Others[60] which concerns the ‘discretionary jurisdiction’ clause in Article 17 of the Dublin III Regulation rather more than Article 27 thereof. That case arose in the run-up to Brexit – that is, after the United Kingdom had notified its intention to withdraw from the European Union but before its departure. The applicants had entered the United Kingdom in 2014 but moved to Ireland in 2016, where they lodged applications for asylum. Ireland made a ‘take charge request’ to the UK authorities, which was accepted. Before a transfer decision was made, the applicants challenged the Irish authorities’ refusal to take jurisdiction under Article 17 and consider their asylum claims. They raised health issues and grounds relating to the United Kingdom’s impending withdrawal from the European Union. The Court emphasised that Article 17(1) is a discretionary option and declined to turn Brexit into a circumstance requiring the Irish authorities to invoke that article. [61] The Court noted that its further ruling that there was no requirement to provide for a separate right of challenge to such a decision was without prejudice to the applicants’ right to raise their Article 17 arguments in the context of a challenge under Article 27 of the Dublin III Regulation to a (subsequent) transfer decision taken against them. [62]

73.             Finally, in H. and R. [63] the Grand Chamber again examined the scope of the right to an effective remedy in Article 27 of the Dublin III Regulation. I shall cite in full what I consider to be the relevant paragraphs of that judgment (the opening paragraphs provide a convenient reminder of elements identified earlier in my survey of the relevant case-law):

‘38       Article 27(1) of the Dublin III Regulation provides that a person who is the subject of a transfer decision is to have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against that decision, before a court or tribunal.

 

39        The scope of that remedy is explained in recital 19 of the Dublin III Regulation, which states that, in order to ensure compliance with international law, the effective remedy introduced by that regulation in respect of transfer decisions must cover (i) the examination of the application of the regulation and (ii) the examination of the legal and factual situation in the Member State to which the applicant is to be transferred (judgments of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 43, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 37).

 

40        In that context, in the light, in particular, of the general thrust of the developments that have taken place, as a result of the adoption of the Dublin III Regulation, in the system for determining the Member State responsible for an asylum application made in one of the Member States, and of the objectives of that regulation, Article 27(1) thereof must be interpreted as meaning that the remedy for which it provides against a transfer decision must be capable of relating both to observance of the rules attributing responsibility for examining an application for international protection and to the procedural safeguards laid down by that regulation (see, to that effect, judgments of 26 July 2017, A.S., C‑490/16, EU:C:2017:585, paragraphs 27 and 31; of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraphs 44 to 48, and of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, paragraph 38).

 

41        The fact that the transfer decision against which the remedy was exercised was adopted at the end of a take charge or take back procedure is not capable of influencing the scope that that remedy is thus recognised as having.

...

43        However, that finding does not imply that a person concerned may rely, in the national court before which such a remedy has been invoked, on the provisions of that regulation which, in so far as they are not applicable to his situation, did not bind the competent authorities when conducting the take charge or take back procedure and adopting the transfer decision.’

74.             Since the national court’s questions arose specifically from its doubts as to whether Article 9 of the Dublin III Regulation was or was not applicable to the situation before it, the Court then moved on to consider whether the competent authorities were required, in situations such as those at issue in the main proceedings, to determine the Member State responsible for examining the asylum application by taking the criterion for determining responsibility contained in Article 9 into consideration before they could properly make a take back request. [64]

75.             I add merely that the circumstances of those cases did not involve whether or not later facts should be considered, or arguments suggesting that respect for fundamental rights and a correct application of the Regulation might necessitate taking a broader view of matters than a reading in isolation of the Chapter III criteria would require. Nor (a fortiori), did they involve any submission that failure to have regard to later facts would result in the applicants’ cases not being treated fairly by the national authorities responsible for determining the Member State responsible under the Dublin III Regulation.

The arguments of the parties

76.             Mr H.A. contends that the case-law shows the importance of having an effective remedy against a transfer decision; and that it is necessary to consider the evidence which became available after the contested decision was taken in order to ensure that the asylum procedure relating to him is fair.

77.             The Belgian Government argues, first, that the reference is inadmissible. In the alternative, it argues that Article 27 should not be interpreted as meaning that the national court must take account of circumstances subsequent to the transfer decision, if those circumstances do not have a bearing on the examination of the Dublin III Regulation itself or the factual situation in the Member State to which the applicant is to be transferred. (I interject that that submission appears to seek to rely heavily on the particular facts of this case to avoid dealing directly with the effect of the national rule at issue. That rule, being an absolute prohibition on any judicial scrutiny of subsequent facts, would also preclude the national court from having regard to subsequent facts that unequivocally did affect the position in a way that would clearly make Belgium the responsible Member State, either in straightforward application of the Chapter III criteria or because of the factual situation in the Member State to which the applicant was to be transferred.)

78.             The Netherlands Government takes the view that the national court must be able to take account of facts arising after a transfer decision is adopted where that is necessary in order to ensure the correct application of the Dublin III Regulation. However, it considers that on the facts of the applicant’s case, that issue does not arise.

79.             The Commission records that Article 27 of the Dublin III Regulation leaves the Member States a margin of discretion to decide and define the type of appeal procedure available to applicants who seek to challenge transfer decisions and that Belgium chose an annulment procedure rather than a procedure involving rehearing and reassessment of the facts. That said, the Commission – like the Netherlands – considers that in a challenge to a transfer decision the court or tribunal must be able to take account of facts arising after that decision was adopted where they concern the application of the Chapter III criteria relating to take charge or take back requests, or in circumstances where the fundamental rights of the person concerned are at issue. Again like the Netherlands, it considers that these issues do not arise on the facts of the applicant’s case.

                       Analysis

80.             I begin by taking stock of the case-law that I have just reviewed.

81.             It is abundantly clear that the Court has taken seriously the principle laid down by Article 27(1) of the Dublin III Regulation that applicants must have ‘an effective remedy, in the form of an appeal or a review, in law and in fact, against a transfer decision’.

82.             In Shiri, the Grand Chamber laid down the following important statement of principle:

‘... in the light, first, of the objective, referred to in recital 19 of the Dublin III Regulation, of guaranteeing, in accordance with Article 47 of the Charter of Fundamental Rights, effective protection of the persons concerned and, secondly, of the objective, noted in paragraph 31 of the present judgment, of determining rapidly the Member State responsible for processing an application for international protection, in the interests both of applicants for such protection and of the proper general functioning of the system established by that regulation, the applicant must have an effective and rapid remedy available to him...’ [65]

83.             It seems to me that that statement must be the correct starting point for my analysis in the present case. The applicant must, of course, have an argument to present to the court in the challenge that he wishes to make to the transfer decision that is at least, prima facie, credible. By that, I mean that he must be able to point to a positive act committed by the national authorities, or an omission on their part, or a procedural defect in the way that his case was decided, and be able to advance the proposition that, had matters been otherwise, it is possible that the outcome would have been different. (I do not consider that he needs to be able to demonstrate that the outcome would ‘definitely’ or ‘almost certainly’ or ‘probably’ have been different, merely that it might credibly have been different.) If he can mount such a case, the acid test then is, do the arrangements in place to implement the duty imposed upon Member States by Article 27 of the Dublin III Regulation provide him with an effective remedy?

84.             In that context, it is already clear (and this is common ground as between Belgium, the Netherlands and the Commission) that an applicant must be able to rely on later facts ‘when the correct application of the Dublin III Regulation depends on those circumstances being taken into account’ (Hasan, at paragraph 31) or when such a later fact is generated by the application of a procedural rule, such as the expiry of a time limit (Shiri, at paragraph 44). I interject that in both Shiri and Hasan, the applicable national rules did authorise the judge dealing with a challenge to a transfer decision brought under Article 27 of the Dublin III Regulation to have regard to facts arising after that decision was taken. [66] In neither case, therefore, did the issue arise as to what conclusion should be drawn under EU law if it were not possible procedurally for the national court to do so under national law.

85.             It is also clear (and accepted by both the Netherlands and the Commission) that, where an applicant claims that a transfer decision would expose him to a risk of treatment that would be contrary to Article 4 of the Charter, [67] the reviewing court must be able to take later facts into account (C.K. and Others).

86.             Both those Member States and the Commission argue, however, that Article 27 does not cover the circumstances of Mr H.A.’s case. In so saying, they postulate that the existing case-law (which I have reviewed above) already delineates the outer limits of the right to effective protection enshrined in that provision.

87.             It seems to me that the reading of that case-law espoused by Belgium, the Netherlands and the Commission is too restrictive. I do not read that case-law as having established that those are the only circumstances in which the reviewing court either may or should have regard to later facts.

88.             Thus, most pertinently for the present reference, I cannot agree that one should read the Charter right to respect for family life (Article 7) as being automatically circumscribed by, and confined to, relationships with those persons exhaustively listed as ‘family members’ in Article 2 of the Dublin III Regulation. To do so not only inverts the relationship between secondary law (the Regulation) and primary law (the Charter): it also sets out on the (dangerous) path of ignoring the possibility that the case-law of the European Court of Human Rights (‘the Strasbourg court’) may take a more generous view of circumstances in which the right to protection of family life under the equivalent article of the ECHR (Article 8) is triggered.

89.             The detail of the relationship between Mr H.A. and his brother is not before this Court. Nor should it be, for it is trite law that it is the national court, not this Court, that is the sole judge of facts. It is sufficient for me to recall here the case-law of the Strasbourg Court which confirms that family ties between siblings can fall within the scope of Article 8 of the ECHR, [68] although such relationships may attract less protection than that afforded to minors, unless there is evidence of elements of dependency involving more than normal emotional ties. [69] Thus, an absolute rule of national law whose operation precludes consideration of later facts evidencing both the existence and possible relevance of such a relationship (here, between brothers) sits ill with those provisions of the Charter.

90.             I also recall that, when operating the Dublin III Regulation, the Member States are implementing EU law for the purposes of the Charter; [70] and that the Charter is explicit that, ‘In so far as this Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR’ (Article 52(3), first sentence of the Charter).

91.             The Dublin III Regulation is concerned, quintessentially, with determining the Member State responsible for considering an application for international protection. An applicant’s right to obtain effective protection against a misapplication of the Regulation to his case is channelled through the mechanism of Article 27 (the right to challenge a transfer decision). The correct application of the Dublin III Regulation is neither always self-evident nor always easy to determine. Where later facts have (objectively) to be taken into account in order to be confident that the Member State responsible has been identified correctly, that is a situation that must necessarily fall within the scope of Article 27 of the Dublin III Regulation. That conclusion follows both from the central objective of the Regulation (correct determination of the Member State responsible) and from the requirement that an applicant should have ‘effective’ judicial protection.

92.             It is, moreover, essential – and indeed this appears to be common ground between the parties – that (i) the Dublin III Regulation must be applied in a way that respects applicants’ fundamental rights; and (ii) if that necessitates taking later facts into account in order to evaluate a challenge to a transfer decision, Article 27 thereof requires that it must be possible to take such later facts into account. I shall return to this aspect later. [71]

93.             One argument that has been canvassed relies on the general rule laid down in Article 7(2) of the Dublin III Regulation that ‘The Member State responsible in accordance with [the Chapter III criteria] shall be determined on the basis of the situation obtaining when the applicant first lodged his or her application for international protection with a Member State’. On that basis, it has been suggested that later facts – such as those being relied upon by Mr H.A. – are automatically and inevitably to be excluded from consideration.

94.             That argument can, it seems to me, be rejected without difficulty. From the wording of that provision, it is clear that it relates exclusively to the conduct of an analysis based on the Chapter III criteria. The case law that I have reviewed above amply demonstrates, however, that that rule is not an absolute rule that is, or should be, applied in all circumstances when determining the Member State responsible for examining an application for asylum. Rather, that case law shows that, on the contrary, later facts must be taken into account when it is appropriate to do so in order to ensure the correct application of the Dublin III Regulation.

95.             The strongest argument that Belgium makes, it seems to me, is that Article 27 of the Dublin III Regulation gives Member States a choice of two arrangements that they may adopt in respect of challenges to transfer decisions, [72] the options being either an ‘appeal’ or a ‘review’. Essentially, therefore, Belgium argues that the arrangements that it has put in place fall within the margin of discretion that it enjoys as a Member State. To that argument I now turn.

96.             Article 27(1) lays down the broad principle that an applicant [73] ‘shall’ have the right to an effective remedy. What constitutes ‘an effective remedy’ is then defined (‘in the form of an appeal or a review... against a transfer decision’) which shall be ‘before a court or tribunal’. And then there are the words ‘in fact and law’.

97.             Article 27 can thus (potentially) be read in different ways. Is what is meant that there shall be an ‘appeal or review’, both of which shall be ‘in fact and law’? Or are Member States entirely free to choose between ‘an appeal’ (and does that mean, ‘exclusively on points of law’?) or ‘a review, in fact and law’?

98.             It seems to me that the existing examples in the Court’s case-law of circumstances in which a national court must take subsequent facts into account already provide a clear hint that a ‘pure’ appeal confined to an examination of whether the applicable rules were correctly applied to the facts that were before the decision-maker at the time when he took the decision that is under challenge (based on a scrupulously ex tunc view of what are the relevant facts) will not always satisfy the requirements of Article 27 (see points 76, 77 and 84 above). Thus, even when they opt for more limited review, Member States must always make provision for some mechanism whereby, in an appropriate case, the court to which the applicant goes in exercise of his right to effective protection under Article 27 is able to take later facts into account.

99.             Thus, it seems to me that a power of review that is strictly limited to checking whether the law has been applied correctly to the facts before the decision-maker when the transfer decision was made, utilising the conventional tools of administrative law review, will not be sufficiently flexible to satisfy the requirements of Article 27 of the Dublin III Regulation as that provision has been construed in the existing case-law of the Court.

100.         A proper and legitimate way of testing whether an absolute rule (like the rule of national law at issue in the present case) does or does not comply with EU law is to test the operation of that rule against hypothetical situations that might arise that are not, as yet, covered by the case law. Such a process also avoids the risk of usurping the function of the national court by determining whether, on the facts of the particular case that led to the making of the order for reference, the application of a different rule would automatically have led to a result that was more favourable to the applicant.

101.         Applying that technique, it seems to me clear that an absolute prohibition on judicial scrutiny of subsequent facts can lead to results that are plainly wrong. Let me offer a couple of illustrations.

102.         Example 1. Suppose that inter-tribal violence in country W results in the murder of all the members of a family save a sixteen-year old boy (A), who flees the massacre in the company of an older man (B), who is a close family friend. They start to make their way towards the EU to seek asylum. They travel together for six months, during which B supports A both materially and emotionally, although he has no legal responsibility for him. However, they become separated shortly before a possible border crossing point into the EU. A crosses there and travels briefly through one Member State (where his finger prints are taken and entered into Eurodac) to a second Member State, where he lodges an application for international protection. His application is rejected and a decision is taken to transfer him to the Member State where his fingerprints were taken. Two days later B arrives, having taken a different, longer route and entered directly into the second Member State. There is an emotional reunion.

103.         B immediately applies for international protection in that second Member State. A also contacts the authorities. He points out that whilst B is not, strictly speaking, a family member or relative, he has de facto become A’s guardian and father figure and indeed his whole family. A invokes Article 7 (right to respect for family life) and Article 18 (asylum rights) of the Charter. He begs the authorities to rescind the transfer decision against him and consider the two applications (by A and B) together: there is, obviously, a high degree of overlap between their two stories. That request is rejected and A brings a challenge before the national court under the national rules implementing Article 27 of the Dublin III Regulation.

104.         In this example, the relationship is (probably) not covered by the ‘family member’ rules in the Dublin III Regulation; but a genuine question arises as to whether A’s fundamental right to respect for his family life under Article 7 of the Charter should lead to his application for international protection being considered in the second Member State. It follows that the resultant transfer decision should be capable of being subject to scrutiny under Article 27 of the Dublin III Regulation.

105.         Example 2. C applies for international protection in Member State X. His application is rejected on the basis that a different Member State (Y) is responsible under the Dublin III Regulation for examining it and a transfer decision is made against him. He lodges a challenge against that transfer decision. Three days before that challenge is listed for hearing, C contracts Covid-19. His condition worsens rapidly. He is admitted to hospital, then into intensive care, where he is placed on a ventilator. It is obvious that it will be risky to attempt to move him to Member State Y in execution of the transfer decision. Travelling will be dangerous in itself and Member State Y’s medical service is currently under great pressure from the pandemic. Exactly how ‘risky’, no one can really say. It is also obvious that C is probably going to need more hospital treatment and then, if he recovers, follow-up care and support after his discharge from hospital. Fortunately, he has a first cousin who obtained refugee status in Member State X two years ago [74] who has undertaken in writing to look after him; and the friends that he has already made in the immigrant community there are ready to rally round. There are clearly additional humanitarian arguments that can and should now be deployed in his favour.

106.         There is no point in C’s (pro bono) lawyer applying separately for interim relief, because the case is about to be heard anyway and the authorities have already given an undertaking not to attempt to move C until the outcome of the challenge to the transfer decision is known (this undertaking means, possibly not coincidentally, that any application for interim relief would inevitably be doomed to fail). C’s lawyer wishes to adduce evidence of C’s serious medical condition and make the consequent humanitarian arguments to the court.

107.         In this example, the risk to C from being moved (with Covid-19 or whilst recuperating from it) to another Member States may or may not be sufficient to trigger Article 4 of the Charter. Likewise, the supportive cousin does not come within the definitions in Article 16 of the Dublin III Regulation (and nor do the friends from within the immigrant community). All these are, however, relevant factors in making a fair overall assessment of which Member State should be responsible for considering C’s application for international protection. A transfer decision that blithely ignored all those elements would not reflect a fair assessment of C’s case. Again, it therefore follows that the resultant transfer decision should be capable of being subject to scrutiny under Article 27 of the Dublin III Regulation.

108.          In both examples, the change of circumstances that I have postulated is relevant (to varying degrees) to the underlying question of what is the appropriate decision for the national authorities to take in determining the Member State responsible under the Dublin III Regulation, [75] and hence whether the transfer decision should or should not be allowed to stand. Whilst it is the transfer decision per se that is the subject of the challenge before the national court, behind the transfer decision are the facts and circumstances of a real situation involving a real applicant for international protection, whose application requires to be treated correctly and according to law.

109.         In both examples, an absolute prohibition on judicial scrutiny of subsequent facts will arguably (perhaps, indeed, plausibly) lead to the ‘wrong’ result. Such a rule prevents the applicant from having an ‘effective’ remedy and may well lead to very real injustice. It also – precisely because it is an absolute rule – prevents the Dublin III ‘system’ from operating intelligently and properly.

110.         That cannot be right.

111.         At this point it is perhaps instructive to return, briefly, to the facts of the main proceedings.

112.         Much has been made of the fact – and fact it is – that the presence of Mr H.A.’s brother in Belgium did not enable Mr H.A to rely upon Articles 9 or 10 of the Dublin III Regulation. Following on from that uncontroversial and unchallengeable fact, the submissions of Belgium, the Netherlands and the Commission have all then proceeded on the basis that the circumstances of the main action fall outside what is covered by Article 27 of the Dublin III Regulation because Mr H.A.’s fundamental rights were likewise not engaged.

113.         However, the material before the Court suggests that, both in the adoption of the contested decision and in the judgment of the CCE, the later fact that Mr H.A.’s brother had arrived in Belgium and had applied for asylum there was never taken into account for the purposes of assessing whether – in the light of that fact, as viewed through the prism of relevant fundamental rights as guaranteed by the Charter, rather than the black letter of the Chapter III criteria – there was a plausible argument that might be made that Mr H.A. should not forthwith be transferred to Spain. [76]

114.         When the contested decision was adopted, Mr H.A.’s brother had not yet arrived in Belgium, so by definition that fact formed no part of the contested decision. When Mr H.A. challenged the contested decision, the CCE was precluded by national law from having regard to later facts. It therefore seems likely that no analysis ever took place of the potential fundamental rights impact of that later fact on the correct determination of the Member State responsible. Some further analysis may of course have taken place in the course of defending these proceedings. If so (and again, so far as I was able to tell from a preliminary review of the file), [77] that analysis is likely to have been conducted purely in terms of, ‘is Mr H.A.’s brother a family member within the definition in Article 2(i) of the Dublin III Regulation?’ Since the answer to that question was clearly ‘no’, there the analysis probably stopped – or at least, my preliminary review did not uncover any separate analysis that examined whether Mr H.A.’s fundamental rights were nevertheless engaged. But all this is a matter for the national court, as sole judge of fact, to verify as required once this Court has answered the question referred. [78]

115.         In so saying, I am expressing no view as to whether, on the facts of this case, Mr H.A. did or did not have a valid argument that his brother’s presence and application for international protection altered matters, either from the perspective of fundamental rights or merely in terms of the elements that required to be taken into consideration in order to evaluate his case fairly. The essential point is this. If an application for international protection is to be processed fairly, including at the stage when the determination is made as to which Member State is responsible under the Dublin III Regulation, it is sometimes necessary for the administrative authorities to ‘go the extra mile’. Should those authorities be presented with specific material and plausible arguments capable of affecting that determination (whether relating to fundamental rights or as a relevant, albeit not conclusive, element of the case), it seems to me that they are required at least to evaluate what has been presented to them. It follows from that proposition that the right to effective protection enshrined in Article 27 thereof likewise requires that an applicant should be able to ask a court or tribunal to exercise judicial oversight over the subsequent transfer decision.

116.         Nor am I swayed by the argument that, if courts can also take into account later facts in their review, the floodgates of litigation will swing open and courts will be deluged with meritless applications (the ‘floodgates argument’). In my experience, both as a barrister who frequently acted on instructions for a government department and subsequently as a Member of the Court, the floodgates argument tends to be deployed by administrations in order to reduce the amount of judicial scrutiny to which they are subject rather than from an altruistic desire to lessen the burden falling on the judiciary. Rather than upholding an absolute prohibition on judicial scrutiny of subsequent facts that may in certain cases lead to real injustice, it seems to me preferable to trust the judges to distinguish between claims that have merit and those that do not.

117.         I emphasise that, in my view, the absolute nature of the Belgian rule that precludes judicial scrutiny of subsequent facts is what leads it to fall foul of Article 27 of the Dublin III Regulation (and what indeed, in certain circumstances, might clearly undermine the proper and effective operation of that Regulation). I can conceive of other, less restrictive rules limiting consideration of later facts (for example, that excluded such consideration in principle and required the applicant to put forward good reasons why later facts ought nevertheless to be taken into consideration in a particular case) that could more readily be justified in the name of legal certainty and the sound administration of justice.

118.         The essential point is that doing justice in a way that guarantees effective protection requires rules that permit judicial flexibility in an appropriate case, rather than rules that cram the judge into a procedural straitjacket.

119.         In that connection, I do not regard the fact that – as I understand it – later facts may be taken into consideration in the context of an application for interim relief as providing any real answer to the problem of inadequate judicial protection that I have identified. Interim relief applications (which are not a cost-free step for an applicant to take) are – or should – be limited to cases where the urgent intervention of the courts is required to preserve the status quo pending determination of the substantive action. Not all cases will (or, I add, should) legitimately trigger an application for interim relief as well as a substantive challenge to a decision. Indeed, I can see significant disadvantages (in terms of rational case management) in forcing applicants to seek interim relief in order to be able to present later facts to the court that are relevant but that happen to have arisen after the transfer decision was taken. [79]

                       Postscript

120.         I should like to conclude by offering some observations on the requirement of procedural fairness (read against the background of the right to good administration contained in Article 41 of the Charter).

121.         When determining which is the Member State responsible under the Dublin III Regulation, the national authorities are under a general duty to act fairly. By that I mean that they should (where specifically invited to do so, with supporting evidence and argument) be prepared to look at material presented to them that may have a bearing on the application of the Dublin III Regulation construed in the light of the Charter, including material that might influence the exercise of a discretion under Article 17 thereof.

122.         In so saying, I am not suggesting that a Member State can normally be obliged to exercise its discretion under Article 17 voluntarily to assume responsibility for the substantive consideration of the application (although N.S. and Others [80] and C.K. [81] show that there are particular circumstances in which that may indeed be the case). A duty to take a particular element of information ‘X’ into consideration in order to be fair when dealing with a case file does not equate to a duty, as a result of so doing, automatically to apply Article 17 and consider the substantive application. I am here merely highlighting the need for national authorities treating files containing applications for international protection to have regard to their more general duty – reflecting shared European values as to how public administrations should conduct themselves – to behave fairly and not to exclude from consideration material that is relevant to the outcome of that application.

123.         Why is this so important?

124.         Over recent years, we have seen increasing numbers of persons from all corners of the globe arriving in the European Union and applying for international protection. Despite our own troubles – exacerbated, of course, by the Covid-19 pandemic – we are still correctly perceived by many as a relatively safe haven: economically, politically and socially. Whilst there will be amongst the new arrivals some who are indeed ‘merely’ economic refugees, [82] there will be others whose cases fall fair and square within the terms of the Geneva Convention and who will clearly, when their substantive applications are considered, qualify for international protection.

‘But there are so many of them... and our services have a big backlog of cases... and look, we could get rid of this one to Member State A. That would at least reduce our caseload and improve our statistics. His application will, after all, be looked at under exactly the same substantive rules as we apply and that way, he’ll be Member State A’s problem, not ours.’

125.         That is the start of a slippery slope. By dehumanising the individual applicant and mentally classifying them as just another statistic, short cuts in treating the individual case become legitimised. It is not so very, very far a step from there to the thinking that ends up by replacing a person’s name with a number in blue, tattooed on their forearm. We have just marked the 75th anniversary of the start of the Nuremberg trials. The shared values expressed in Article 2 TEU – that the Union is ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ (and the subsequent express references to pluralism, tolerance, justice and solidarity) – are the antithesis of the conduct that those trials were held to investigate and sanction.

126.         I venture, therefore, to reiterate the sentiment that has underpinned previous Opinions in this area of EU law that I wrote as an Advocate General. An applicant for international protection is not a statistic. He or she is a human being, who has the right to be treated fairly and with dignity. The Court took a major – and, I respectfully say, correct – step forward in Ghezelbach, when it recognised that Article 27 of the Dublin III Regulation had introduced a sea-change in terms of the effective protection of applicants’ rights as compared to its predecessor, the Dublin II Regulation; and that the case law should move forward in parallel with the new text and the Charter rights that it echoes.

127.         Naturally, the EU legislature in laying down a framework of rules such as the Dublin III Regulation cannot foresee every one of the myriad factual situations that may arise in practice. That is why it is so important for the national authorities, when considering a new individual case, to respect their duty of fairness towards the individual applicant concerned. That is also why it is so important that an applicant for international protection should have wider, rather than narrower, access to a court or tribunal under Article 27 of the Dublin III Regulation. The effective protection of rights requires that he should be able to say, in an appropriate case, ‘This later fact has a bearing on which Member State should deal substantively with my case. The national authorities refused to have regard to it and thereby did not deal fairly with my application. Please annul the transfer decision that they made and tell them to look again properly at my file’.

128.         That interpretation of where the boundaries of Article 27 lie ensures judicial scrutiny over whether the administrative authorities correctly discharged their public duties, within the law, having due respect for fundamental rights. Such judicial scrutiny guarantees effective protection of rights for the individual applicant for international protection. It also, and more generally, helps to guarantee respect for the rule of law within the European Union. In a democratic society based on the rule of law, that too has real value.

                       Conclusion

129.         Accordingly, I suggest that in answer to the question referred for a preliminary ruling by the Conseil d’État (Belgium), the Court should rule as follows:

‘Article 27 of [the Dublin III Regulation], read in conjunction with Article 47 of the Charter, precludes the application of a rule of national law that places an absolute prohibition on a national court taking into account (in an ordinary challenge, rather than in the exceptional context of an application for interim relief) circumstances that arose after the adoption of a ‘transfer decision’ within the meaning of Article 26 of that Regulation. In order to guarantee applicants for international protection the right to an effective remedy, as protected by Article 27 of the Dublin III Regulation and Article 47 of the Charter, a national court must have the possibility of taking such circumstances into account in any case brought before it challenging such a transfer decision, where it deems it appropriate and equitable to do so.’

 



[1]           Regulation (EU) No 604/2013 of The European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, OJ 2013 L 180, p. 31, as amended.

[2]           See, notably, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805, judgment of 26 July 2017, Mengesteab, C‑670/15, EU:C:2017:587, judgment of 16 February 2017, C.K., C‑578/16 PPU, EU:C:2017:127, judgment of 25 January 2018, Hasan, C‑360/16, EU:C:2018:35, judgment of 23 January 2019, M.A. and others, C‑661/17, EU:C:2019:53 and judgment of 2 April 2019, H. and R., C‑582/17 and C‑583/17, EU:C:2019:280.

[3]           The (European) Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’).

[4]           Signed in Geneva on 28 July 1951, which entered into force on 22 April 1954 (‘the Geneva Convention’), as supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Protocol’). The Geneva Convention was originally limited to persons fleeing events that occurred before 1 January 1951 and within Europe. The 1967 Protocol removed those limitations and gave the Geneva Convention universal coverage.

[5]           Article 41(2)(a).

[6]           The rights enshrined in Article 47 of the Charter reflect, to a significant extent, those set out in Articles 6 and 13 of the ECHR.

[7]           Recital 3.

[8]           Recital 4.

[9]           Recital 5.

[10]         The Dublin system provides the criteria and mechanisms to establish the Member State responsible for examining applications for international protection. Apart from the Dublin III Regulation, that system comprises Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation No 604/2013 and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180, p. 1; ‘the Eurodac Regulation’), and Commission Regulation (EC) No 1560/2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 222, p. 3); amended by Commission Implementing Regulation (EU) No 118/2014 of 30 January 2014 (OJ 2014 L 39, p. 1).

[11]         Recital 9.

[12]         Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60) (‘the Procedures Directive’).

[13]         Recital 12.

[14]         Recital 14.

[15]         Recital 15.

[16]         Recital 17.

[17]         Recital 32.

[18]         Recital 39.

[19]         Either because there are systemic flaws in the asylum system or the reception system in the Member State that would be responsible under the Chapter III criteria, or because the neat system envisaged by the Chapter III criteria simply does not fit the particular facts of the individual case.

[20]         For the definition of who is considered to be a minor and their treatment under the Chapter III criteria, see Article 2(i) and Articles 8, 10 and 16.

[21]         The words ‘another person as referred to in Article 18(1)(c) or (d)’ refer to a third-country national or a stateless person.

[22]         See judgment of 11 September 2008, UGT-Rioja and Others, C‑428/06 to C‑434/06, EU:C:2008:488, paragraph 39 and the case-law cited.

[23]         Judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 24.

[24]         Judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 24 and 25 and the case-law cited. See also judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2019:979 at paragraphs 26 and 27 and the case law-cited.

[25]         I do not know whether Mr H.A. has made any other claim(s) before the national courts that might also, directly or indirectly, be affected by the answer to the question referred by the Conseil d’État; and I consider that it would be unwise to speculate on the matter one way or the other.

[26]         Judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 35 and the case-law cited.

[27]         See, by analogy, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465 at paragraph 34.

[28]         Judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865.

[29]         Council Regulation No 343/2002 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1).

[30]         See at paragraphs 86 to 98 of the judgment. Later the Court considered whether the United Kingdom could rely on Protocol No 30 (its – limited – opt-out from the Charter) in order to avoid the application of the answers that the Court had just given on the interpretation of the Dublin II Regulation as read in the light of the Charter. It held that the answers did not need to be qualified in any respect so as to take account of that Protocol: see paragraphs 116 to 122 of the judgment.

[31]         Judgment of 7 June 2016, Ghezelbash, C‑63/15, EU:C:2016:409. My Opinion in that case is at EU:C:2016:186.

[32]         Judgment of 10 December 2013, Abdullahi, C‑394/12, EU:C:2013:813.

[33]         See paragraphs 32 to 40 of that judgment.

[34]         At paragraph 39 of the judgment.

[35]         At paragraph 40 of the judgment.

[36]         At paragraph 42 of the judgment, emphasis added.

[37]         See paragraphs 45 to 51 of the judgment.

[38]         See generally paragraphs 52 to 61. Paragraphs 54 (this is not forum shopping, but verification that the Chapter III criteria for determining responsibility have been applied correctly) and 60 (harmonisation of rules cannot, in itself, result in an interpretation that limits the scope of the remedy provided for in Article 27) are perhaps particularly pertinent here.

[39]         Paragraph 61 and ‘dispositif’ (operative part of the judgment).

[40]         Judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410. My Opinion in that case is at EU:C:2016:189.

[41]         See paragraph 27 and ‘dispositif’ (operative part of the judgment).

[42]         Judgment of 25 October 2017, Shiri, C‑201/16, EU:C:2017:805. My Opinion in that case is at EU:C:2017:579.

[43]         See paragraphs 26 to 34 of the judgment.

[44]         See paragraph 36 of the judgment.

[45]         See paragraph 37 of the judgment.

[46]         See paragraph 38 of the judgment, citing judgment of 26 July 2017, Mengesteab, C‑670/15, EU:C:2017:587 at paragraphs 44 to 48 and the case-law cited.

[47]         See paragraph 43 of the judgment.

[49]         Judgment of 26 July 2017, Mengesteab, C‑670/15, EU:C:2017:587. My Opinion in that case is at EU:C:2017:480.

[50]         At paragraph 45 of the judgment (emphasis added), quoting Ghezelbach, paragraphs 47 to 51.

[51]         At paragraph 46 of the judgment (emphasis added), quoting Ghezelbach, paragraph 52.

[52]         At paragraph 48 of the judgment (emphasis added).

[53]         Judgment of 16 February 2017, C.K., C‑578/16 PPU, EU:C:2017:127.

[54]         See paragraphs 29 to 46 of the judgment for a detailed narrative of the facts, the procedure before the national courts and the arguments advanced at various stages in that odyssey.

[55]         At paragraph 64 of the judgment.

[57]         See paragraphs 29 and 30 of the judgment.

[58]         At paragraph 31 of the judgment (emphasis added), citing Shiri at paragraph 44.

[59]         EU:C:2017:653, at points 63 to 79. In my Opinion in Shiri (EU:C:2017:579, at points 34 and 35), I similarly took the view that the right to an effective remedy comprised the right to argue that the Dublin III Regulation had been applied incorrectly including after the adoption of a transfer decision.

[61]         See paragraphs 57 to 61 of the judgment. Very strong language is used, such as ‘That option is intended to allow each Member State to decide, in its absolute discretion, on the basis of political, humanitarian or practical considerations, to agree to examine an asylum application even if it is not responsible under the [Chapter III criteria]’ (at paragraph 58, citing judgment of 4 October 2018, Fathi, C‑56/17, EU:C:2018:803 at paragraph 53). It is however clear from N.S. and Others, with which I began this survey of relevant case-law, that there may be particular circumstances in which a Member State does not enjoy such an ‘absolute discretion’. I note in passing that this case, although decided by a five-judge chamber, did not benefit from the additional analysis that comes from an Advocate General’s Opinion.

[62]         See the answer to the fourth question referred, at paragraphs 73 to 86 of the judgment.

[64]         See paragraphs 44 and 45 of the judgment.

[65]         At paragraph 44 of the judgment. Emphasis added. See likewise judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218 at paragraph 68.

[66]         See Shiri, paragraph 45 and Hasan, paragraph 33.

[67]         Article 4 of the Charter states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The Explanations confirm that the right in Article 4 of the Charter is the right guaranteed by Article 3 of the ECHR, whose wording is identical.

[68]         See, for example, Moustaquim v. Belgium, Appl. No. 12313/86 at § 36 and Mustafa and Armağan Akın v. Turkey, Appl. No. 4694/03 at § 19.

[69]         See, for example, Mokrani v. France, Appl. No. 52206/99 at § 33 and Slivenko v. Latvia [GC], Appl. No. 48321/99 at § 97.

[70]         See judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, at paragraphs 64 to 69.

[71]         See points 99 to 103 below.

[72]         For present purposes, the three options listed in Article 27(3), together with the enabling provision in Article 27(4), are without pertinence. Those provisions are all concerned with the (important) question of what arrangements Member States may make to cover what happens to the person concerned by the transfer decision pending the outcome of the appeal or review under Article 27(1).

[73]         Or another person referred to in Article 18(1)(c) or (d) – that is, respectively, ‘a third-country national or a stateless person who has withdrawn the application under examination and made an application in another Member State or who is on the territory of another Member State without a residence document’ and ‘a third-country national or a stateless person whose application has been rejected and who made an application in another Member State or who is on the territory of another Member State without a residence document’.

[74]         A first cousin is not a ‘family member’ within the definition in Article 2 and does not fit within the dependent persons arrangements of Article 16 of the Regulation, which envisages that ‘dependency’ may potential arise where the relationship is between the applicant, on the one hand, and a ‘child, sibling or parent’, on the other hand, and the family ties existed in the country of origin.

[75]         Those changes might also, indirectly, have an impact on the substantive determination of the application for international protection.

[76]         For example (and these are merely illustrations, rather than statements or assessments as to the facts of the case): the two brothers might be emotionally very close; or their respective narratives of why they should be granted asylum might be interlocking narratives and thus, to be assessed fairly and objectively, might require to be considered together.

[77]         Were I still in office, my team and I would, as a matter of course, have double-checked the national file lodged with the Court’s Registry as well as all the written observations before making a definitive statement on this issue. The reader will appreciate that it has not been possible for me to do that here. Accordingly, this statement is put forward tentatively. It relates, in any event, to a matter that will ultimately fall to the national court, as sole judge of fact, to resolve.

[78]         Given that the referring court is dealing with an appeal on a point of law, such verification may not be an easy matter. However, the resolution of that conundrum within the Belgian legal system is not a matter on which I am qualified to offer any assistance.

[79]         During the hearing, some time was expended in exploring whether there might be any other (novel, unexplored) route under Belgian procedural law that would allow an ingenious lawyer representing an applicant for international protection to approach a judge other than the CCE with evidence of later facts that could be taken into account by that judge (albeit not by the CCE). I do not regard it as fruitful to speculate on the possible success of such a creative initiative. It seems clear to me that that is not what is intended by the statement in Article 27 of the Dublin III Regulation that ‘An applicant... shall have the right to an effective remedy... against a transfer decision, before a court or tribunal’.

[80]         Judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865.

[81]         Judgment of 16 February 2017, C.K., C‑578/16 PPU, EU:C:2017:127.

[82]         At some stage in the not too distant future, those responsible for formulating policy and making laws will have to grapple with the fact that climate change, unless arrested and reversed, is threatening to make certain (populous) parts of the developing world increasingly uninhabitable. The ‘economic migrant’ of today who ‘just’ wants a better life for himself and his family risks being joined by many others who, whilst they are not ‘fleeing persecution’, nevertheless manifestly require humanitarian assistance. That is, however, not the problem with which the Court’s judgment in this present reference needs to engage. 

2 comments:

  1. Thank you Steve, for all that you do.
    Catriona.

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