High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.

Asylum Seekers subject to ‘Dublin procedures’ have a right to work under EU Law

 

Liam Thornton, Associate Professor, UCD Law School*

 *Reblogged with permission from Liam Thornton’s blog.

The Court of Justice of the European Union last week held in the K.S decision that Ireland’s 2018 Reception Regulations  do not comply with the 2013 EU Reception Conditions Directive. Persons subject to a potential transfer under the Dublin system have a right to enter the labour market in Ireland where:

-          No decision on their substantive protection claim (not the Dublin transfer issue) has issued within nine months. As the person is subject to a Dublin transfer process, and a substantive protection claim is not being progressed, this iu essence provides a right to enter the labour market within nine months. This right only ceases when the transfer to the EU member state responsible for determining the protection application occurs.

-          The person is not responsible for the delay in progressing the Dublin procedures/transfer.

-          Taking legal action to challenge a Dublin transfer decision is not a delay attributable to the person challenging the Dublin transfer decision; this is simply an exercise of legal rights explicitly provided to protection applicants under the Dublin III Regulation.

Background

Irish law on right to enter the labour market for protection seekers, the 2018 Reception Regulations, sought to create two categories of protection seeker. First, a person for whom a substantive decision on their protection claim would be issued, and who was entitled to enter the labour market (after 9 months if no decision was issued by then). Second, a person who is potentially subject to transfer to another EU Member State under the Dublin Regulation. This person would be entitled to all reception rights, excluding the right to seek to enter the labour market.

The Irish High Court was of the view that the denial of right to enter the labour market for protection applicants subject to a potential Dublin removal was permitted under the 2013 Directive. Mr Justice Humphreys also stated that the applicants were the ones responsible for delay in processing their Dublin transfer, as they had taken court action to prevent transfer to another EU Member State. However, the judge did make a preliminary reference to the Court of Justice of the European Union to seek clarification as to whether his interpretation of law was correct. In the meantime, Judge Humphreys invited the International Protection Appeals Tribunal to follow his interpretation.

Tribunal Member Cindy Carroll in the International Protection Appeals Tribunal declined to follow the approach of Mr Justice Humphreys and stated that EU law was relatively clear on the issue: those subject to a potential Dublin transfer had an entitlement to enter the labour market, once meeting all other conditions. The context to both cases and my analysis of how the Court of Justice would rule can be found in my May 2020 article in European Public Law here (open access version here).

The 2013 Reception Conditions Directive provides that a protection seeker can seek to enter employment, where a first instance decision on their protection claim has not been rendered within nine months. In 2018, Ireland opted in to this Directive, providing (in essence) the first time that protection seekers could seek and enter employment in Ireland. However, the Irish transposition Regulations, purporting to give effect to the Reception Directive, did not grant persons subject to a potential Dublin transfer an entitlement to seek and enter employment.

Advocate General de la Tour, who issued his opinion on the case in September 2020, stated that protection seekers subject to a potential Dublin transfer are entitled to access the labour market, and Ireland could not argue that a protection seeker was ‘frustrating’ their removal to another EU Member State by legally challenging the transfer decision. This is essence was the same approach adopted by the International Protection Appeals Tribunal.

The Court of Justice Decision

The Court of Justice of the European Union has held that there is only one type of protection applicant in European Union law, who is entitled to all reception rights and to access the labour market under the Reception Directive 2013. This is clear from long standing case law of the Court (see Cimade). This interpretation is bolstered by the recitals to the Reception Conditions Directive which emphasise the importance of dignity and self-sufficiency to all requesting international protection, regardless of whether it is in the Dublin process or the substantive determination of the protection claim process.  While the access to the labour market is not included within the 2013 Reception Directive definition of ‘material reception conditions’, access to the labour market is a broad ‘reception right’ referred to elsewhere in the Directive.

The Court of Justice rejected the attempt by the Irish High Court to interpret the Reception Directive as permitting the denial of freedom to enter the labour market to protection applicants who did not lodge their protection claim in the first EU Member State of entry, as

…[N]o provision of the Dublin III Regulation requires an applicant for international protection to lodge his or her application with the Member State of first entry

A protection applicant who appeals a first instance decision that s/he be removed from say Ireland is not responsible for delays in courts determining the matter. The High Court had sought to fix all persons challenging a Dublin transfer decision as ‘abusing rights’ and should not be entitled to access the labour market. As the Court of Justice noted, the Dublin III Regulation explicitly provides a right for such an applicant to challenge a Dublin Transfer decision. The Court of Justice states:

….the EU legislature did not intend that judicial protection enjoyment by applicants…should be sacrificed to the requirement of expedition.

The Court of Justice has made clear that where a protection applicant subject to a Dublin transfer decision is appealing such a decision, s/he continues to have an entitlement to work.

In essence, the Court of Justice has upheld the well thought out and expert approach that the International Protection Appeals Tribunal would have adopted, but for the decision of the Irish High Court in K. S. This Court of Justice decision is in no way surprising, and even the most cursory engagement with past Court of Justice case law on reception conditions and the Dublin Regulation would have led a decision maker/judge to the same conclusion provided by the Court. Another feature of note in this case (not solely applicable to access to the labour market issues), is the decision of the Court of Justice, that when interpreting Irish asylum and protection law that is based on Ireland’s opt-in to EU asylum and protection directives, decision makers and judges, where appropriate, may seek legal clarification by reference to Directives that Ireland has not opted into.

What happens now?

The 2018 Regulations clearly need to be amended so as to confirm with Ireland’s freely accepted obligations under European Union law. However, the decision of the CJEU is so clear, that in processing permissions to enter the labour market by protection applicants (subject to Dublin procedures), decision makers in INIS, Department of Justice must ignore the 2018 Regulations and apply EU law directly. (The labour market access permission system remains with Justice, rather than with Children, Disability, Integration and Equality). Rather than waiting for proceedings to conclude in the High Court or the International Protection Appeals Tribunal, this right is effective immediately. It therefore may be appropriate for a fresh labour market access permission to be requested by protection applicants whose rights are now recognized by this ruling, alerting decision makers to their obligations under EU law due to this decision.

More broadly, this decision may have impacts well beyond Ireland, as it clarifies (yet again!) that all protection applicants enjoy all reception rights under the Reception Conditions Directive 2013.

**Note: I am not a legal practitioner and am unable to offer individual advice to people who may be impacted by this decision, please ensure you contact your legal representative.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: RTE.ie

Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

Salvo Nicolosi (RENFORCE - Utrecht Centre for Regulation and Enforcement in Europe)

While a new European Union legislature is about to start on 2 July 2019, it is not certain to what extent the new European Parliament will inherit and continue the work of the previous one in one of the most delicate areas under reform, such as the Common European Asylum System (CEAS). The whole reform package has been put into “unfinished business,” according to rule 229 of the Rules of Procedures of the European Parliament. This means that at the end of the legislature all dossiers that have not been voted at the plenary shall be deemed to have lapsed. While arguing that, despite some points of concerns, the European Parliament made a significant contribution especially as regards the reform of the Dublin Regulation and that departing from such a position will be a misstep for the new European Parliament, the evolving role of the European Parliament in the past and current negotiations for the CEAS will be considered.

The State of Play of the Negotiations

In an attempt to tackle the structural shortcomings of the CEAS, the European Commission adopted two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council’s Presidency and the European Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth legislature no progress was registered, and the reform is in a stalemate, especially owing to the difficulties to find an agreement on the reform of the Dublin Regulation. Nonetheless, while the Council has not yet managed to come up with a concerted approach, the European Parliament submitted “the boldest official proposal to amend the Dublin system to-date” (Maiani, 2017): the Wikström Report.

The European Parliament as a Forward-Looking Negotiator

Since the entry into force of the Lisbon treaty, the European Parliament has played a crucial role as a co-legislator in the area of asylum. Several authors have welcomed in general such an expansion of powers (Monar, 2011) for an institution that for many years during the European integration process has acted as a consultative body. While its contribution was rather limited to the adoption of the first generation of legislative measures in the field of asylum (1999-2005), which were adopted by unanimity by the Council on the basis of Article 63 of the Treaty on the European Community, the European Parliament distinguished itself as a strategic negotiator and forward-looking legislator during the reform that resulted in the second generation of EU asylum legislation (2008-2013).

In particular, before the end of the sixth term, in May 2009 the Parliament strategically decided to finalise its first reading position at the plenary to leave its imprint on the follow-up during the next legislative term. As has been highlighted (van de Peer, 2016: 57), it was rather exceptional to adopt first reading positions without trying to negotiate a first reading agreement with the Council, as it has been doing during the current phase of reform, in which the LIBE Committee has been seeking to pre-agree a text with the Council before formally adopting its first reading position at the plenary. Moreover, as regards the Dublin Regulation, the European Parliament had already called for a new legislative proposal to put in place by the end of 2011 to replace the provisions on the suspension of transfers proposed by the Commission (COM/2008/820, Art. 31) when  a  Member  State  was  faced  “with  a  particularly  urgent  situation  which  places  an  exceptionally heavy burden on its reception capacities” and suggesting the adoption of “legally binding  instruments to ensure greater solidarity  between Member  States” (EP-PE_TC1-COD(2008)0243, Recital 27), including a relocation mechanism for the benefit of Member States in situations of emergency (Ibid, Art. 32 (2) 11 b).

…Campaigning for Horizontal, Vertical and Reciprocal Solidarity

This emphasis on solidarity is even more visible in the amendments to the current European Commission’s proposal to recast the Dublin Regulation. Departing from the Commission’s proposal (COM/2016/270), which has designed a model of solidarity based on emergency-driven relocations, the Wikström Report deserves the credit of adding another dimension of solidarity to the horizontal and inter-State one, which has been under consideration and abundantly discussed (inter alia Tsourdi, 2017).

Such a new dimension of solidarity, which can be considered vertical, aims to turn the Dublin system into a model which is not only fair to the Member States but also to the asylum seekers. In an attempt to redesign the allocation criteria under the Dublin mechanism, the Wikström Report proposes a relocation mechanism that is supposed to work permanently with a focus on asylum seekers’ genuine links. These include family ties but also previous legal residence or educational diplomas.

Accordingly, the Member State of first arrival has the duty to register the applicants, filter out those representing a risk for security or whose application is manifestly unfounded and determine the transfer of the other applicants in line with any relevant genuine link. On the contrary, if no relevant link is available, applicants will be relocated though the automatic allocation mechanism to one of the four Member States which have received the lowest number of applicants in relation to their fair share. The fair share is calculated on the basis of the GDP and the population to ensure that larger and wealthier countries will have a larger share. For the first time applicants will be given the option to choose among the four less burdened Member States. Also, another example of vertical solidarity refers to the possible group transfer of a maximum of 30 applicants travelling together. As has been emphasised, “the logic of these amendments is to encourage persons to apply in the first State of arrival by offering the prospect of being transferred to a desirable destination” (Maiani, 2017). All transfers are to be operationalised by the future EU Asylum Agency within two weeks from the final transfer decision and the costs should be borne on the general budget of the EU.

Ultimately, in order to ensure reciprocal solidarity, instead of a solidarity fee, as proposed by the Commission, the European Parliament proposed that, if a Member State does not fulfil its obligations of registration or participation in the allocation mechanism, it shall not be permitted to use EU funds to finance the return of third-country nationals to third countries.

A too Ambitious Reform for a still Weak Legislator?

The European Parliament has admittedly distinguished itself as being “revolutionary” in suggesting for the first time the redesign of the Dublin Regulation’s criteria. The amendments contained in the Wikström Report constitute a valuable stepping stone from which the future negotiations can resume. On the basis of Rule 229, the new Parliament’s Conference of Presidents decides on whether to resume or continue the consideration of unfinished legislative proposals. While the practice shows that the European Parliament usually resumes the pending dossiers, the question still remains how effective it is as a co-legislator. The former negotiations for the CEAS show the political unwillingness of the Member States to overhaul the Dublin system. During the adoption of the second phase legislation, Member States were very reluctant in approaching the European Parliament as a co-legislator, especially as regards the reform of Dublin. Still, the current reform lays in stalemate, because all proposals to depart from the current system of responsibility allocation lack the necessary support and politically cannot reach consensus within the Council. This is also reflected in the dramatic emphasis on externalization (EUCO, 2018).

Two general recommendations can be therefore sketched for the future European Parliament. First, the Wikström Report is a valuable stepping stone for the next round of negotiations, but improvements are necessary because, as has been stressed, it designs a system which is far from being practically feasible (Maiani, 2017). This is in particular due to the fact that the permanent relocation will determine a massive number of transfers with the risk that a misfunctioning in their smooth operationalisation can create undesirable deadlocks. It has been suggested renouncing this ambition of large-scale transfers and establishing responsibilities entirely on genuine links (Maiani, 2017). These are remarkable inputs, but perhaps, as a second recommendation, applicants’ choices can be better weighed with a more principled approach to the integration potential in the host society, especially in terms professional life and social inclusion. This means that transfers can be arranged based on the specific needs Member States might have in their labour market. All in all, what refugee law requires is empowerment: allowing refugees to start a new life in dignity.

Barnard & Peers: chapter 26

JHA4: chapter II:5

Photo credit: euractiv.com

The Dublin Regulation: Is the End Nigh? Where should unaccompanied children apply for asylum?

Steve Peers*

Two recent developments have raised controversy as regards the EU’s Dublin III Regulation, the set of rules which determines in which Member State asylum-seekers must make their asylum application. First of all, a British judgment yesterday stated that the UK was responsible for the asylum claims by unaccompanied children in France (in particular the Calais ‘Jungle’), who have a family member in the UK. Secondly, a press report indicated that the Commission is planning to propose a fundamental overhaul of the Dublin rules in the near future. Both developments have alarmed some commentators, but thrilled others. I will examine the legal and political context of each of them in turn.

Unaccompanied minors

Many describe the Dublin III Regulation as allocating responsibility to the ‘first Member State’ which an asylum-seeker entered. This is true for most asylum-seekers; technically it’s the first Member State which they entered without authorisation which has responsibility, but this amounts to the same thing. However, there are exceptions. In particular, since the very first version of the Dublin rules (the Dublin Convention), there have been special rules which apply where the asylum-seeker has a family member in one Member State. These were expanded in the Dublin II Regulation, among other things to add special rules where the asylum-seeker is an unaccompanied minor. Those rules were altered a little further in the Dublin III Regulation.

What are the rules for unaccompanied children? The priority is to place them in the same Member State as a family member. First of all, the Regulation gives responsibility to a Member State where they have a ‘family member’ (defined as a parent, spouse or child) or a ‘sibling’ who is ‘legally present’. Secondly, it gives responsibility to a Member State where they have a ‘relative’ (defined as an adult aunt, uncle or grandparent) who is ‘legally present’. In this second case, there are further conditions: there must be an individual examination to check that the relative is able to take care of the child, and the allocation of responsibility must be in the best interests of the child.

In the absence of a family member or relative, an unaccompanied minor – unlike any other asylum-seeker – in effect has a choice of which Member State to apply in. The CJEU has confirmed (in the case of MA) that this applies even after the child has already applied in one Member State. A subsequent proposal to confirm and extend this rule (which I discussed here) seems to be blocked for now. But this rule was not at issue in yesterday’s judgment.

Despite the consternation it caused in some quarters, that judgment is primarily straightforward. Once it’s clear that the asylum-seeker is a child who has family or relatives as defined by the EU rules in a particular Member State, the child must be transferred to that Member State to apply for asylum there. Sometimes it’s hard to prove the age of the child or the link to family or relatives, but it doesn’t seem like that was the case here (it’s hard to be certain, since the full text of the judgment is not reported yet).

One of the asylum-seekers in the case was not a child, but was dependent on a younger brother due to the effects of trauma suffered in Syria. His situation was covered by a separate clause in the Dublin III Regulation which says that ‘dependent persons’ should stay with a child, sibling or parent who can take care of them. This is a binding rule (‘shall normally keep or bring together’), as established in the CJEU judgment in K and confirmed in the preamble to the Dublin III Regulation.  

Why was the judgment controversial? First of all, there is a particular legal point: the rules in the Regulation only take effect for those who have applied for asylum, following which the Member State where they have applied is obliged to contact the responsible Member State and arrange for the transfer to that State. The judgment appears to circumvent that process, simply requiring the UK to admit the four plaintiffs despite the absence of any action by the French authorities. It appears from press reports that at least one of the applicants did have some proof of having applied for asylum in France, but it is not clear if all of them did. This will probably be the basis of an appeal which the UK government might make – although the applicants will be allowed into the UK in the meantime.

On the face of it, this is a valid legal objection: the proper procedures were not followed. Having said that, the judgment is indisputably consistent with the substantive intention of the drafters of the law: to ensure that children (and dependent persons) who apply for asylum are with people who can look after them. Since all the plaintiffs are Syrian, there seems little doubt that they intend to apply for asylum (and perhaps had done already) – or that their application will be successful (the refugee recognition rate for Syrians being over 90%). 

More fundamentally, the plaintiffs alleged that the French government did not (or would not) process their asylum applications. If this is true, the French government is in breach of EU law, and it is arguable that its breach should not be allowed to stand in the way of applying the rules on asylum responsibility. But this line of argument raises complex legal questions about how to prove such fault and who has the burden of proving it – and whether such a fault justifies a procedural shortcut at all. It would be best if these issues are sent to the CJEU to clarify (it can use an emergency procedure to decide on cases involving children). That would also make it more obvious that these issues do not just concern the UK and France: there may be unaccompanied children seeking asylum in Greece who seek to join family or relatives in Sweden, for instance.

Secondly, there are political objections on the grounds that UK immigration law has been infringed. It should be noted that the UK chose to opt in to the Dublin III Regulation – while it opted out of almost every other EU immigration and asylum law of the last twelve years. The attraction for the UK was the possibility that some asylum-seekers could be sent back to other Member States – which they are. But the rules are reciprocal: sometimes they are bound to mean that the UK has to accept asylum-seekers from other Member States. In practice, most or all such cases will involve family members. And quite frankly, anyone who argues that in principle an unaccompanied child who is seeking asylum from war or persecution should remain in squalor in Calais or Dunkirk, rather than join a family member legally in the UK who can look after him or her, is devoid of basic humanity.

What is the impact of the ruling? It cannot affect anyone who has not got family members in the UK, subject to the conditions mentioned above. In some cases, it will be hard to prove that the applicant is a child, or that the person they seek to join is a family member. The procedural aspects still need to be clarified. But for anyone else, as I discussed last summer, the French government quite rightly remains responsible for dealing with their asylum applications and providing humane living conditions, or for returning those who have not applied for asylum or whose applications have failed to their country of origin.

Plans to amend the Regulation

The key feature in the reported plans to amend the Regulation is the intention to replace the ‘first country’ rule with a set of criteria allocating responsibility to Member States based on some kind of ‘fair shares’ principle. Presumably some rules allocating responsibility based on family members will remain, perhaps with amendments. No further details are known, and it should not be forgotten that the Commission proposal would have to be agreed by both the European Parliament and the Council. But I will focus on two key issues: the feasibility of the new system, and the impact on the UK.

First, the feasibility has to be assessed in light of the EU’s existing rules on ‘relocation’ of some asylum-seekers who reached Greece or Italy. Two measures were adopted in September, and I discussed them in detail at the time. Four months on, there are significant problems applying these rules in practice, as the Commission’s regular reports indicate (see also the UNHCR’s assessment). A tiny fraction of the asylum-seekers have been relocated, due to the slow development of ‘hotspots’ for registering applications in Greece and Italy, as well as the reluctance of most Member States to receive asylum-seekers. Some Member States have flat-out refused to apply the system, and Slovakia and Hungary have challenged its legality (see the analysis of Slovakia’s challenge by Zuzana Vikarska here). The ‘hotspots’ are arguably not properly considering the asylum applications of many asylum-seekers who are not due for relocation (see analysis by Frances Webber here). While the Commission has proposed already to amend the Dublin III Regulation to make emergency relocation rules permanent, the Member States are objecting to this (see the leaked record of discussions here).

Overall, then, the relocation system is manifestly not working. It is therefore hard to see why the Commission could imagine that it could somehow work if it became the general rule, rather than the exception as at present (the relocation Decisions only apply to 160,000 asylum-seekers over two years, a small minority of the numbers that might be expected over that time).

Secondly, the UK, as already noted, has an opt-out from EU immigration and asylum law. This opt-out applies also to amendments to legislation that the UK already takes part in. Indeed, the UK has opted out of most of the ‘second phase’ of EU asylum legislation, even though it opted in to all the ‘first phase’ measures. So it is flagrantly not true to say that the UK could be ‘forced to accept more refugees’ under any new proposal. It could simply opt out.

However, that opt out could have consequences. The Protocol on the UK opt out says that if the opt out from an amendment to an existing law in which the UK participates makes the existing law ‘inoperable for other Member States or the Union’, that existing law can be revoked as regards the UK. This is a high threshold, and this clause has never been invoked to date. The UK was able to opt out of the relocation decisions, and of the recent proposal to amend Dublin III to add a permanent emergency system, without triggering this clause (as I discussed here). However, a complete overhaul of the Dublin system, replacing the core rules on the allocation of asylum responsibility, is likely to trigger it.

In that case, the UK would face a choice: (a) opt in to the new rules, and face more asylum-seekers as a result, or (b) opt out of the new rules, and face more asylum-seekers because the existing Dublin rules would be terminated for the UK. For those (like the UK government) who would not like to see more asylum-seekers, neither option is appealing. But it is likely that there would be a far smaller increase in asylum-seekers if the UK opts out. Recent statistics collated by Open Europe suggest that the UK only returns about 700 asylum-seekers a year to other Member States pursuant to the current Dublin Regulation in recent years; and yesterday’s ruling may mean that this may have to be offset against flows in the other direction. On the other hand, one estimate in The Independent suggests that a ‘fair shares’ rule could mean that the UK is responsible for 85,000 asylum-seekers a year.

Finally, what would be the impact of ‘Brexit’ on asylum-seeker numbers? Since the current Dublin rules are internal EU legislation (they ceased to take the form of a ‘Convention’ back in 2003), the UK would no longer be covered by them as from Brexit Day. The EU could sign a ‘Dublin’ treaty with the UK, but I rather doubt it would do so, for the reasons I discussed here). So Brexit would increase the numbers of asylum-seekers in the UK, assuming that the current Dublin rules are then still in force, and still result in a net removal of asylum-seekers from the UK. If there are new Dublin rules, and the UK has opted out of them, then Brexit would have no effect. Brexit would only reduce the number of asylum-seekers if the Dublin rules are still in force and have resulted in a net inflow of asylum-seekers to the UK.  In any event, Brexit would mean that unaccompanied children seeking asylum are left alone in other Member States rather than joining parents or other family members who are legally in the UK and able to look after them.

Barnard & Peers: chapter 26

JHA4: chapter I.5

Photo: children in the Calais ‘jungle’

Photo credit: DailyMail.co.uk

 *Disclosure: I have done some work as a sub-contractor for a contractor advising on the evaluation of the Dublin III Regulation and the impact assessment on its replacement. However, while I am bound to confidentiality as regards that work, I was paid for my independent advice and remain free to express my views on the current or future Dublin system. 

Can the UK opt-out of mandatory EU refugee quotas?

 

Steve Peers

In two days’ time (Wednesday May 13^th), the EU Commission is due to present a communication on a new EU immigration and asylum agenda. I’ll look at this agenda in detail later, but one key issue calls for comment already: will the UK have an opt-out from mandatory refugee quotas?

Part of the Commission paper has been leaked, and it’s clear that at least on the issue of resettlement of refugees, the current draft of the paper is more ambitious than the conclusions of EU leaders, agreed a couple of weeks ago (see my comments on their conclusions here). In particular, the Commission plans to propose mandatory rules on ‘relocation’ of asylum-seekers and ‘resettlement’ of refugees. In EU jargon, ‘relocation’ refers to those already in the EU, while ‘resettlement’ applies to those currently in non-EU countries. The first group do not necessarily have valid asylum claims, while the latter group usually have their status as refugees positively assessed before they are admitted to the territory.

According to press stories in the Guardian and the Times (the latter is paywalled) there may be a conflict with the UK as regards refugee quotas, because of a doubt that the UK can opt out of these proposals. Let’s look at this from the legal and political point of view in turn.

Legal analysis

The draft Commission plan refers to the ‘legal base’ of the relocation proposals as being Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that:

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

Article 78(3) is part of the Justice and Home Affairs (JHA) provisions of the Treaty. All of these provisions are found in Title V of Part Three of the TFEU. But the UK has an opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of the Treaties provides that (my emphasis):

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.

Article 1 refers to Article 3 of the Protocol, which is the power for the UK and Ireland to opt in to proposals on a case-by-case basis if they want to. For the avoidance of doubt, Article 2 of the Protocol reiterates that (my emphasis):

In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland.

Article 2 refers to Articles 4 and 6: these rules give the UK power to opt into a JHA measure after it’s adopted (Article 4) and make clear that if the UK opts in to a JHA act, all the rules in the Treaty (ie the CJEU’s jurisdiction) apply (Article 6).

It’s beyond doubt that the opt-out Protocol applies to all JHA measures. This is confirmed because a specific clause (Article 9) does, by way of exception, state that one JHA rule (on anti-terrorist sanctions) applies to Ireland without any opt-out. There’s a similar sort of exception in a parallel Protocol which sets out JHA opt-outs for Denmark. So by a contrario reasoning, the UK can opt out of any JHA measures. If there were any exception for Article 78(3), it would obviously appear in the Protocol.

So it seems clear enough that the UK does not have to opt in to any refugee law measure, as long as it falls within a JHA legal base. The Commission paper does not contemplate the dubious strategy of trying to propose a refugee law measure on a non-JHA legal base, in order to circumvent the UK’s opt-out.

However, there is a specific rule which applies where an EU proposal would amend existing EU legislation which the UK is already bound by. In fact, the UK is not bound by most current EU asylum legislation, but it is bound by the Dublin Regulation, which determines which Member State is responsible for the application of an asylum-seeker who is on the territory (or in the territorial waters) of a Member State.  

There seems no reason to amend the Dublin Regulation as regards any resettlement proposal, since resettlement concerns recognised refugees currently in third countries, not asylum-seekers currently on the territory of the EU Member States. However, the relocation proposal probably would have to amend the Dublin Regulation, since it would necessarily alter the current rules on which Member State is responsible for an asylum application.

The special rule applying to the cases where a JHA proposal amends a JHA act which already binds the UK is set out in Article 4a of the Protocol:

1. The provisions of this Protocol apply for the United Kingdom and Ireland also to measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union amending an existing measure by which they are bound.

So the UK opt-out continues to apply in such cases. However, there’s a catch: if the UK opts out of such proposals, it’s possible for it to be turfed out of its participation in the existing law, ie the law which the proposal seeks to amend. In this case that would mean that the UK would be turfed out of its participation in the Dublin Regulation, which results in a net allocation of asylum-seekers from the UK to other Member States.

Article 4a sets out the details of how this would work. First of all, the Council (by a qualified majority vote of participating Member States, ie without the UK’s vote), on a proposal from the Commission, decides that the revised law would be ‘inoperable’ for other Member States or the UK, if the UK doesn’t participate. That decision in effect gives the UK an ultimatum to opt in to the amending law within two months. If the UK doesn’t opt in within that period, then the original measure (ie, the current Dublin Regulation) automatically ceases to apply to the UK.  

This ‘ultimatum’ clause dates from the Treaty of Lisbon, and has never been used. It would obviously cause considerable political friction if it were, given that the UK is attached to continuing its participation in the Dublin rules.

The new proposals might alternatively (or additionally) take the form of amendments to the current EU temporary protection Directive, which the UK also participates in. The same considerations about using the ultimatum clause would apply, except that there would not be so much political sensitivity: that Directive has never been used in practice, and the current UK government would probably not be upset about being expelled from it (this Directive dates back to 2001; the UK opted in under the previous Labour government). However, the proposals might also take the form of amendments to the EU’s Asylum and Migration Fund, which the UK participates in and would be reluctant to be expelled from (the previous coalition government opted in to it).

It should also be noted that there might be a legal argument about the use of Article 78(3), because the European Parliament (EP) would likely prefer another asylum ‘legal base’ to apply which would give it its usual power over EU legislation. But using a different asylum legal base would not alter the rules relating to the UK’s opt-out.

Political context

First and foremost, it has to be pointed out that the Commission’s proposals may not be accepted. Indeed, given the many previous failed attempts to agree EU rules on relocation and resettlement, and the obvious lack of willingness of EU leaders to commit themselves on these issues even in light of the recent migrant death toll, such proposals might well be dead on arrival. It’s clear from the wording of the Treaty that there has to be a qualified majority of Member States in the Council to approve such proposals, although the EP is only consulted.

Similarly, the UK could not be given an ultimatum as regards its participation in existing EU law unless the Commission proposes a Council decision to this end, and the Council agrees by qualified majority (without a UK vote). The EP has no role in that case. It’s far from certain that this would happen, even if the Council were enthusiastic about these Commission proposals.

In light of this, in combination with the election of a majority Conservative government committed to holding a referendum on the UK’s membership of the EU, is it really wise for the Commission to make these proposals and suggest that they might bind the UK despite its opt-out? Admittedly it’s not realistic to expect the Commission to avoid making any proposal which might cause the least offence to the UK for the many months up until the referendum date. But if it wants the UK to remain in the EU – as the Commission President says it does – it has to avoid making proposals which are liable to cause the most offence. That particularly applies to proposals relating to immigration, which is by far the most sensitive issue for the UK’s relations with the EU.

After all, if the UK leaves the EU, there would anyway be no prospect of relocating asylum-seekers here in any event. While it’s understandable that the Commission wants bold solutions to the EU’s migrant crisis, there are times when discretion is the better part of valour.

 

Barnard & Peers: chapter 26

Photo: bbc.co.uk

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

Steve Peers

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

Preliminary questions from the court The Hague (Den Bosch)

Case number: AWB 14/12282

Brief summary of the case

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

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

 

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

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

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

-          A statement from his employer;

-          A statement from a physician;

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

 

The preliminary questions are:

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

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

 

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

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

 

Barnard & Peers: chapter 26